Staley et al v. Kozeny & McCubbin, LC et al

Filing 21

OPINION, MEMORANDUM AND ORDER--HEREBY ORDERED that Defendants America's Servicing Company and Deutsche Bank National Trust Companys Motion to Dismiss [ECF No. 6 ] is GRANTED. FURTHER ORDERED that Defendant Kozeny & McCubbin, L.C.Motion to Dismis s [ECF No. 11 ] is GRANTED in part, and DENIED as to costs and fees of Defendant. FURTHER ORDERED that Plaintiffs James and Cheryl Staley's Motion to Remand [ECF No. 13 ] is DENIED. FURTHER ORDERED that Plaintiffs' Motion to Withdraw as Attorney [ECF No. 19 ] is DENIED. FURTHER ORDERED that Defendant Kozeny & McCubbin, L.C.'s Motion for Sanctions [ECF No. 20 ]is DENIED. FURTHER ORDERED that this matter is dismissed, with prejudice. Signed by District Judge Henry E. Autrey on 09/24/2012. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES STALEY, and CHERYL STALEY,
)
)
Plaintiff,
)
)
v.
)
)
KOZENY & McCUBBIN, L.C.,
)
AMERICA’S SERVICING COMPANY,)
and DEUTSCHE BANK NATIONAL )
TRUST COMPANY,
)
)
Defendant.
)

No. 4:12CV0210 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants America’s Servicing
Company and Deutsche Bank National Trust Company’s Motion to Dismiss [ECF
No.6]. Additionally, Defendant Kozeny & McCubbin, L.C. filed a Motion to
Dismiss [ECF No. 11]. Plaintiffs James Staley and Cheryl Staley (“Plaintiffs”) did
not file direct opposition to the motions; however, they did file a Motion to
Remand Case to State Court [ECF No. 13]. Defendants Kozeny & McCubbin,
L.C., America’s Servicing Company and Deutsche Bank National Trust Company
(“Defendants” collectively) oppose Plaintiffs’ motion. See ECF Nos. 16, 17. For
the reasons set out below, the Defendants’ Motions to Dismiss are granted.
Factual Background

On August, 5, 2010, Plaintiffs filed a state court action against Defendants,
which alleged claims based on wrongful disclosure, quiet title, and violations of
the Fair Debt Collections Practices Act (“FDCPA”). On September 10, 2010,
Defendant Kozeny & McCubbin removed said case to this Court. See 4:10-cv1681HEA. Defendants filed motions to dismiss, to which Plaintiff failed to
respond to. On September 22, 2011 the Court ordered Plaintiffs to show cause as
to why the case should not be dismissed. On October 31, 2011, the Court entered
an Order granting Defendants’ Joint Motion to Strike, which dismissed the action
altogether due to Plaintiffs’ failure to adhere to the Court’s Order to show cause.
On December 19, 2011, Plaintiffs brought a state court action in the Circuit
Court of St. Charles County, Missouri against all the same Defendants named in
the previous case mentioned above [4:10-cv-1681 HEA]. Defendants then
removed the case to this Court. Plaintiffs allege claims of wrongful foreclosure,
quiet title, and violations to the FDCPA.
Discussion
Defendants move to dismiss this case on the basis of res judicata. When
ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure
to state a claim, the Court must take as true the alleged facts and determine
whether they are sufficient to raise more than a speculative right to relief. Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court does not, however,
accept as true any allegation that is a legal conclusion. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949-50 (2009). The complaint must have “‘a short and plain statement of
the claim showing that the [plaintiff] is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Twombly, 550 U.S. at 555 (quoting Fed.R.Civ.P. 8(a)(2)) and then Conley
v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Twombly, supra); see also
Gregory v. Dillard’s Inc., 565 F.3d 464, 473 (8th Cir.) (en banc), cert. denied, 130
S.Ct. 628 (2009). While detailed factual allegations are not necessary, a complaint
that contains “labels and conclusions,” and “a formulaic recitation of the elements
of a cause of action” is not sufficient. Twombly, 550 U.S. at 555; accord Iqbal,
129 S.Ct. at 1949. The complaint must set forth “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570; accord Iqbal, 129
S.Ct. at 1949; Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
The issue in considering such a motion is not whether the plaintiff will ultimately
prevail, but whether the plaintiff is entitled to present evidence in support of the
claim. See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
The principle behind the doctrine of res judicata is that “[f]inal judgment on
the merits precludes the relitigation of a claim on any grounds raised before or on
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any grounds which could have been raised in the prior action.” Poe v. John Deere
Co., 695 F.2d 1103, 1105 (8th Cir. 1982), (citing Federated Dep't Stores, Inc. v.
Moitie, 452 U.S. 394, 398 (1981)). “Res judicata prevents the splitting of a single
cause of action and the use of several theories of recovery as the basis for separate
lawsuits.” Friez v. First Am. Bank & Trust of Minot, 324 F.3d 580, 581 (8th
Cir.2003) (citing Hartsel Springs Ranch v. Bluegreen Corp., 296 F.3d 982, 986
(10th Cir.2002)).
Under Eighth Circuit law, in order for a claim to be precluded under the
doctrine of res judicata due to a determination reached in a prior lawsuit, the
following five elements must be satisfied: “1) the first suit resulted in a final
judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both
suits involve the same parties (or those in privity with them); and (4) both suits are
based upon the same claims or causes of action. Furthermore, the party against
whom res judicata is asserted must [ (5) ] have had a full and fair opportunity to
litigate the matter in the proceeding that is to be given preclusive effect.”
Rutherford v. Kessel, 560 F.3d 874, 877 (8th Cir.2009) (citations omitted).
The doctrine of res judicata applies in this case. The parties do not dispute
that a court of competent jurisdiction entered the prior judgment. In addition, the
final judgment in the previous related case before this Court [4:10-cv-1681HEA]
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was on the merits. In the earlier case, the Court dismissed Plaintiff’s case under
Federal Rule of Civil Procedure 41(b) for failure to respond to, or obey, the
Court’s Orders. A dismissal under Rule 41(b) “operates as an adjudication on the
merits. Fed. R. Civ. P. 41(b); Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir.
1995) (“[A] dismissal with prejudice operates as a rejection of the plaintiff’s
claims on the merits and res judicata precludes further litigation.”); Jiricko v.
Moser and Marsalek, P.C., 184 F.R.D. 611, 613-16 (E.D.Mo. 1999). Indeed,
Plaintiff was ordered to show cause as to why the case should not be dismissed;
however, they failed to do so.
The parties are the same in both cases. The doctrine of res judicata
prohibits a party from re-litigating a cause of action on grounds that were raised or
could have been raised in a prior suit. Lane v. Peterson, 899 F.2d 737, 741 (8th
Cir.1990). In the previous case before this Court, and now this case, the plaintiffs
are James and Cheryl Staley; the defendants are Kozeny & McCubbin, L.C.,
America’s Servicing Company and Deutsche Bank National Trust Company. As
such, the parties are the same in both cases.
Additionally, both suits are based upon the same claims or causes of action
Under res judicata, a party’s claim is barred “if it arises out of the same nucleus of
operative facts as the prior claim.” Banks v. Int’l Union Electronic, Elec.,
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Technical, Salaried and Machine Workers, 390 F.3d 1049, 1052 (8th Cir. 2004).
In both cases the Plaintiffs’ claims remain the same: wrongful foreclosure, quiet
title, violations of the FDCPA. As such, both suits are based upon the same
claims.
And finally, both parties have had a full and fair opportunity to litigate the
matter in the proceeding that is to be given preclusive effect.” Rutherford v.
Kessel, 560 F.3d 874, 877 (8th Cir.2009) (citations omitted). Neither Plaintiffs nor
Defendants dispute this fact. As such, all five elements of res judicata are present
and this matter shall be dismissed with prejudice.
Conclusion
Based upon the foregoing, this action is barred by the doctrine of res
judicata. Both this case, and the previous case [4:10-cv-1681 HEA] arise out of
the same nucleus of operative facts relating to Plaintiffs’ foreclosure. Defendants’
motions to dismiss are well taken.
Accordingly,
IT IS HEREBY ORDERED that Defendants America’s Servicing
Company and Deutsche Bank National Trust Company’s Motion to Dismiss [ECF
No.6] is GRANTED.

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IT IS FURTHER ORDERED that Defendant Kozeny & McCubbin, L.C.
Motion to Dismiss [ECF No. 11] is GRANTED in part, and DENIED as to costs
and fees of Defendant.
IT IS FURTHER ORDERED that Plaintiffs James and Cheryl Staley’s
Motion to Remand [ECF No. 13] is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Withdraw as
Attorney [ECF No.19] is DENIED.
IT IS FURTHER ORDERED that Defendant Kozeny & McCubbin, L.C.’s
Motion for Sanctions [ECF No. 20]is DENIED.
IT IS FURTHER ORDERED that this matter is dismissed, with prejudice.
Dated this 24th day of September, 2012.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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