Myers et al v. Sander et al.

Filing 44

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that defendant Greg Fuesting's motion to dismiss [# 12 ] is granted. Fuesting is dismissed from the case. IT IS FURTHER ORDERED that: Defendant Investors Title Company's motion to dismiss [# 33 ] is granted in part. Counts I, II, III, IV, V, and VII, are dismissed as to Investors Title. The only remaining count against Investors Title Company is Count VI, Unjust Enrichment. Defendant First Bank's motion to dism iss [# 35 ] is granted in part. Counts I, II, III, IV, V, and VII, are dismissed as to First Bank. The only remaining count against First Bank is Count VI, Unjust Enrichment. Defendant Investors Title Company's motion for a more definite stateme nt and motion to strike are denied. Plaintiffs' motion for leave to respond to Investors Title's reply [# 41 ] is granted insofar as their motion provides the substance of their proposed reply. No further surreply may be filed. Defendants G reg Fuesting and First Bank's motion for extension of time to file a reply [# 42 ] is denied as moot. Plaintiffs' motion for partial summary judgment remains under submission. IT IS FINALLY ORDERED that defendants Investors Title Company and First Bank shall file answers to Count VI within fourteen days of the date of this Memorandum and Order. Signed by District Judge Catherine D. Perry on 02/03/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RONALD MYERS, individually and on )
behalf of a class of similarly situated
)
individuals, et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
LEDA J SANDER, et al.,
)
)
Defendants.
)

Case No. 4:13CV2192 CDP

MEMORANDUM AND ORDER
This case, brought by plaintiffs Ronald and Frances Myers against a number
of defendants, grows out of the foreclosure of their home. One of the defendants,
Middlewest Properties, foreclosed on the Myers‟ property and sought a deficiency
judgment in Missouri state court. After a bench trial, the state court ruled that
Middlewest was not entitled to the deficiency judgment because it, and its agent
Leda Sander, had breached the covenant of good faith and fair dealing and had
come to the court with unclean hands.
As described by the Missouri Court of Appeals, when Middlewest had
initially sold the property to the plaintiffs in December 2007, it knew that it had
previously pledged the property in exchange for a line of credit from First Bank.
The sales price for the home was $215,000, and Middlewest lent the Myers

$209,000, with a balloon payment due six months after purchase, on July 1, 2008.
Unbeknownst to the Myers, sometime after they closed on the property, First Bank
recorded the deed of trust Middlewest had executed in exchange for the line of
credit and placed a $2 million lien on the property.1 When the Myers sought to
refinance the balloon note, they learned of the lien, but Sanders and Middlewest –
who admitted at the state trial that the lien amount was a mistake – failed to take
action to remove the lien. Because of the lien, the Myers could not refinance.
When they could not pay the balloon note, Middlewest foreclosed and sought a
deficiency judgment.
After prevailing in the state trial court and the Missouri Court of Appeals in
defeating Middlewest‟s attempt to obtain a deficiency judgment, the Myers filed
this case in state court.2 When they amended their pleadings to add defendants and
federal claims, a newly added defendant removed the case to federal court.
I.

Parties and Claims
The currently pending complaint is extremely confusing. Several defendants

have now filed motions to dismiss. The plaintiffs are now suing the following five

1

The plaintiffs also allege that, sometime around closing, they purchased a title insurance
policy from Investors Title Company, which – like Middlewest – failed to disclose the existence
of the lien.
2
Before removal, the state court denied the defendants‟ motions to dismiss, which argued that
this case should have been brought as a compulsory counterclaim. The state court also allowed
the Myers to file an amended complaint.

–2–

defendants in seven counts: Middlewest, its employee Leda Sander, First Bank, its
employee Greg Fuesting, and title insurer Investors Title Company.3 Each count
seeks relief against “respondents, jointly and severally.” The claims are titled as
follows: Criminal Recording of First Bank‟s Nonconsensual Common Law Lien
(Count I); Malicious Trespass (Count II); Mail & Wire Fraud (Count III);
Violation of African-American Home Ownership Rights (Count IV); Unfair &
Deceptive Business Practices (Count V); Unjust Enrichment (Count VI); and Loss
of Consortium (Count VII).4
Additionally, the plaintiffs seek to represent a class of similarly situated
persons. They define the class as:
all individuals – in the 10-year period preceding Petitioners‟ closing –
whom Middlewest fraudulently induced to purchase real property and
title insurance as part of a real estate scheme designed to (i) part
purported buyers from their monies, (ii) retain the real property
purportedly sold, (iii) utilize a multi-pronged judicial process to
overwhelm and to extort additional monies from the purported buyers.
II.

Pending Motions
Now pending before me are three motions to dismiss and a motion from

plaintiffs styled as a motion for partial summary judgment. First Bank and its
employee Fuesting have moved separately to dismiss the claims against them, as
3

In November 2013, the plaintiffs voluntarily dismissed two additional defendants, DAS
Acquisition Company, LLC and Kevin Spooner.
4
As discussed below, the plaintiffs voluntarily dismissed portions of Counts III and IV in their
response to the defendants‟ motions to dismiss.

–3–

has defendant Investors Title Company.5 The plaintiffs initially failed to respond
to the motion to dismiss by Fuesting. They ignored my order that they show cause
why Fuesting‟s motion should not be granted, then failed to respond to the motion
to dismiss by Investors Title. The plaintiffs then filed a timely response to the First
Bank motion to dismiss that purports to respond to all three motions, albeit
belatedly. They did not explain their failure to file earlier timely responses to the
two prior motions or to the show cause order. After Investors Title replied to their
response, the plaintiffs filed a motion for leave to file a surreply, again without any
explanation about why their initial response was so late. I will grant the motion for
leave insofar as it contains the substance of the plaintiffs‟ proposed surreply. In
the interest of justice, I have considered the plaintiffs‟ filings in their entirety, but
plaintiffs‟ counsel is warned that in the future they will be held to the deadlines set
by the Federal Rules of Civil Procedure and the local rules of this court.
As described below, I will dismiss Fuesting entirely. The allegations against
Fuesting are so sparse that the plaintiffs have failed to state any kind of claim
against him. In addition, I will dismiss six of the seven counts against Investors
Title Company and First Bank because the plaintiffs have failed to include
sufficient facts to support each of the elements of those claims. The only

5

Defendants Sander and Middlewest filed answers and have not sought to dismiss the case.

–4–

remaining claim against these defendants is Count VI, unjust enrichment. The
plaintiffs‟ motion for partial summary judgment now applies only to defendants
Sander and Middlewest, and it remains under submission until those defendants
have had an opportunity to respond. First Bank and Fuesting‟s joint motion for an
extension of time to file a reply is denied as moot.
III.

Motion to Dismiss Standard
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal

sufficiency of the complaint. When considering a 12(b)(6) motion, the court
assumes the factual allegations of a complaint are true and construes them in favor
of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” In
Bell Atlantic Corp. v. Twombly, the Supreme Court clarified that Rule 8(a)(2)
requires complaints to contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” 550 U.S. 544, 555 (2007); accord
Aschcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Specifically, to survive a motion
to dismiss, a complaint must contain enough factual allegations, accepted as true,
to state a claim for relief “that is plausible on its face.” Twombly, 550 U.S. at 570.

–5–

IV.

Defendant Fuesting
In their complaint, the Myers say very little about defendant Fuesting. They

identify Fuesting as an “employee or agent” of First Bank and later give his title as
“Senior Vice President of First Bank.” (¶¶ 6, 62.) They also state that all of
Fuesting‟s acts or omissions were in furtherance of First Bank‟s interests or
“alternatively,” that he was “an undisclosed agent of Middlewest.” (¶¶ 41–42.)
Finally, they state that “First Bank, acting through Fuesting, attempt[ed] to
criminally extort funds from Petitioners by directing written demands for payment
to Petitioners in violation of penal statute § 575.130.4 RS Mo.” (¶ 40(a).)
That is it. Although they describe some other actions taken by First Bank,
they never allege that any of those other actions was taken by Fuesting as First
Bank‟s employee. As plaintiffs have confirmed in their brief that they are not
seeking to bring a claim of extortion, it is unclear what claim the alleged attempted
criminal extortion goes to, if any. Neither I nor Fuesting is required to guess. See
Gurman v. Metro Housing & Redev. Auth., 842 F. Supp. 2d 1151, 1153 (D. Minn.
2011) (it is “emphatically not the job of either a defendant or the Court” to “pick
through the mess” of a complaint that fails to comply with Rule 8(a)(2) to
“determine if plaintiffs may have pleaded a viable claim or two”). There is nothing
more about Fuesting‟s role in any of the events described by the plaintiffs, nor any
–6–

explanation about how the written demands support any of the claims the plaintiffs
have brought.
In short, the complaint does not contain enough factual allegations against
Fuesting to state any plausible claim for relief from him. All it does is identify
Fuesting‟s employer and job title and attribute one action to him, disconnected
from any of the plaintiffs‟ claims. This, without more, wholly fails to meet the
requirements of Rule 8(a)(2). See Twombly, 550 U.S. at 555 n.3 (“Without some
factual allegation in the complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only „fair notice‟ of the nature of the claim, but also
„grounds‟ on which the claim rests.”). I will therefore dismiss the claims against
Fuesting.
V.

Defendants Investors Title Company and First Bank
I will address each of the seven counts in turn as they apply to defendants

Investors Title Company and First Bank.
Count I: Criminal Recording of First Bank‟s Nonconsensual Common Law Lien
Under Missouri law, the owner of a property affected by a “nonconsensual
common law lien” may seek relief in the state circuit court. See Mo. Rev. Stat. §
428.105–135. The Myers have alleged that the First Bank deed of trust (executed
in exchange for the $2 million line of credit extended to Middlewest) constituted a
–7–

nonconsensual common law lien for which they are entitled to relief. Investors
Title and First Bank argue that, for various reasons, the deed of trust was not such
a lien and that even if it was, the Myers are not entitled to any or all of the relief
they seek.
Missouri law defines a nonconsensual common law lien as:
a document that purports to assert a lien against the assets, real or personal,
of any person and that, regardless of any self-description:
(a) Is not expressly provided for by a specific state or federal statute;
(b) Does not depend upon the consent of the owner of the property
affected or the existence of a contract for its existence; and
(c) Is not an equitable or constructive lien imposed by a state or
federal court of competent jurisdiction.
Mo. Rev. Stat. § 428.105(3).
Among other things, Investors Title argues that the deed of trust cannot be a
nonconsensual common law lien because it depended upon the consent of
Middlewest, which was the “owner of the property affected” at the time the deed of
trust was executed. It relies on HSBC Bank USA, Nat’l Ass’n v. Weber, 400
S.W.3d 32, 34 (W.D. Mo. 2013) in support of its contention. In Weber, the only
Missouri appellate decision to interpret Section 428.105(3), the court found that a
“notice” placed on some properties by their owner during pre-foreclosure could not
be a nonconsensual common law lien because the owner had consented to the

–8–

notice. The fact that he was in default at the time he executed and recorded the
notice was of no consequence; he was still the owner.
Although it provides some guidance, Weber does not squarely address the
situation here, where a lien was executed while one party owned the property at
issue, but recorded after the property changed hands. Nonetheless, I agree with
Investors Title that it was Middlewest‟s consent – and not the Myers‟ – that
matters for purposes of a determining whether the deed of trust was a
nonconsensual common law lien.
There are two parts of the statute that provide support for this conclusion.
First, Section 428.105(3)(b) excludes liens that depend on the owner‟s consent for
their “existence.” It is well established that a deed of trust exists as soon as it is
executed, even if it has not yet been recorded. See Southern v. Southern, 52
S.W.2d 868 (Mo. 1932) (“[r]ecording is not essential in transferring title as
between the parties themselves”). Second, Section 428.120 gives remedies for
persons with an interest in property “subject to a recorded nonconsensual common
law lien,” which makes it clear that a lien can be a nonconsensual common law
lien even if it has not been recorded. This confirms that it is the consent of the
owner at the time of execution – and not recording – that affects whether a lien can
be deemed a nonconsensual common law lien. Because Middlewest was the owner
–9–

of “the property affected” at the time it consented to and executed the First Bank
deed of trust, that deed of trust cannot constitute a nonconsensual common law
lien. Therefore, Count I will be dismissed as to the moving parties.
Count II: Malicious Trespass
In Count II, the Myers allege that the defendants “maliciously or wantonly
damaged or destroyed” their property in violation of Mo. Rev. Stat. § 537.330,
providing double damages for malicious trespass. The Missouri statute applies
only to “personal property, goods, chattels, furniture or livestock,” id., and a
Missouri appellate court has interpreted the statute to include intangible property.
See Weicht v. Suburban Newspapers of Greater St. Louis, Inc., 32 S.W.3d 592, 599
(Mo. Ct. App. 2000). The statute, by its very wording, does not apply to real
property. See id. at 600. Although the Myers allege that “[b]y filing the First Bank
Lien, First Bank interfered with Petitioners‟ real property and intangible property
without consent or license,” they do not identify the intangible property they are
referring to. They also do not allege any facts in support of their allegation that
“the Conspiracy” (in which they include Investors Title and First Bank) damaged
or destroyed their personal property, tangible or intangible.
In their surreply, the plaintiffs argue that the intangible property destroyed
by the Conspiracy was their “contractual and ownership rights.” First, “ownership
– 10 –

rights” are, under these circumstances, just another way of describing real
property, which is not included under the Missouri malicious trespass statute.
Further, the plaintiffs do not identify what ownership or contractual rights were
destroyed by the Conspiracy. Although they allege that Investors Title and First
Bank purposely impaired their ability to refinance their mortgage, they do not
allege that a right to refinance was somehow an ownership or contractual right. In
short, the Myers‟ allegations are insufficient to state a plausible claim for malicious
trespass against Investors Title and First Bank, and Count II will be dismissed as
against both defendants.
Count III: Mail & Wire Fraud
There is no private cause of action for mail and wire fraud under 18 U.S.C.
§§ 1341 and 1343. To the extent the Myers seek to assert a claim for mail and wire
fraud, it must fail. The Myers also appear to seek relief for violation of the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c). But in
their opposition to the defendants‟ motions to dismiss, the Myers withdraw any
civil RICO claims. Therefore, the motions to dismiss will be granted as to Count
III.
Count IV: Violation of African-American Home Ownership Rights
The Myers allege that “the Conspiracy” violated “42 U.S.C. §§ 1981, 1982,
– 11 –

and/or 3613” by impairing or destroying their right to contract and using unfair and
deceptive practices. They allege that the defendants “directed the Conspiracy at
African-American Middlewest buyers” and that “no Caucasian-American has been
an apparent victim of the Conspiracy.”
The parties disagree over the applicable statute of limitations for claims
brought under Sections 1981 and 1982. Some claims brought under Section 1981
are governed by the four-year “catch-all” statute of limitations in 28 U.S.C. § 1658.
See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004). However,
claims that would have existed before the 1990 expansion of Section 1981 – as
well as all Section 1982 claims – are, as plaintiffs argue, subject to the limitations
period governing the most analogous state law cause of action. See Harris v.
Norfolk & W. Ry. Co., 616 F.2d 377, 379 (8th Cir. 1980). The Supreme Court has
held that, despite the diversity of claims possible under the civil rights statutes,
courts should always use the forum state‟s statute of limitations governing personal
injury claims. Wilson v. Garcia, 471 U.S. 261, 276 (1985) (analyzing Section
1983 claims). In Missouri, there is a five-year statute of limitations governing
personal injury claims. Mo. Rev. Stat. § 516.120; see also Sulik v. Taney Cnty.,
Mo., 393 F.2d 765, 767 (8th Cir. 2005).

– 12 –

In this case, the Myers allege that “the Conspiracy” (that is, First Bank and
Investors Title, along with other defendants) intentionally interfered with their
right to refinance their mortgage loan because of their race. Assuming without
deciding that this is an appropriate claim under Section 1981, it arises under the
pre-1990 expansion to Section 1981. See Patterson v. McLean Credit Union, 491
U.S. 164, 176–77 (1989) (prior version of statute protected the right to form a
contract). Therefore, the five-year statute of limitations applies.
Nonetheless, even a five-year statute of limitations cannot save the Myers‟
claims under Sections 1981 or 1982. The Myers assert that the filing of the First
Bank deed of trust is what disrupted their ability to form a refinancing contract.
Therefore, their cause of action accrued – at the latest – when they attempted to
refinance and were stymied by the deed of trust. See, e.g., Heimeshoff v. Hartford
Life & Acc. Ins. Co., 134 S. Ct. 604, 610 (2013) (claim accrues as soon as the
plaintiff could file suit and obtain relief); see also Wallace v. Kato, 549 U.S. 384,
388 (2007) (accrual date is a matter of federal law). The Myers discovered the
deed of trust when they attempted to refinance their mortgage loan sometime
before the balloon payment became due on July 1, 2008, but they did not amend
their petition to assert this claim until September 16, 2013. The Myers argue that
the limitations period should be measured from the date of the foreclosure sale on
– 13 –

September 19, 2008, but this is several months after the Myers knew about – and
tried to remedy – the filing of the First Bank lien. As such, it is not the appropriate
accrual date. See, e.g., Clark v. Sears, Roebuck & Co., 827 F. Supp. 1216, 1222
(E.D. Pa. 1993) (limitations period for Section 1981 claims begins “when the
plaintiff knows or reasonably should know that the discriminatory act has
occurred”). In conclusion, the Myers did not bring the claim within five years of
its accrual and so it is time-barred under Sections 1981 and 1982. See Bradley
Timberland Resources v. Bradley Lumber Co., 712 F.3d 401, 406 (8th Cir. 2013)
(motion to dismiss may be granted when a claim is barred under a statute of
limitations).
Under this count, the Myers also cite 42 U.S.C. § 3613, which provides for
enforcement of the Fair Housing Act by private persons. In their response to the
defendants‟ motions to dismiss, the Myers withdraw any FHA claim. As such,
Count IV will be dismissed as against Investors Title and First Bank.
Count V: Unfair & Deceptive Business Practices
In Count V, the Myers allege that the defendants violated the Missouri
Merchandising Practices Act, Mo. Rev. Stat. § 407.010 et seq. To establish a
claim under the MMPA, plaintiffs must allege that they (1) leased or purchased a
product or service; (2) primarily for personal, family, or household purposes; and
– 14 –

(3) suffered an ascertainable loss of money or property; (4) as a result of an act
declared unlawful by Mo. Rev. Stat. § 407.020. Mo. Rev. Stat. § 407.025; Hess v.
Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 773 (Mo. banc 2007).
With respect to the fourth element, a plaintiff must allege that the defendant
“used or employed a deception, fraud, false pretense, false promise,
misrepresentation, unfair practice, concealment, suppression, or omission in
connection with the purchase of the product or service at issue.” Scanio v. Zale
Delaware Inc., 2012 WL 368741, at *2 (E.D. Mo. Feb 3, 2012). Allegations of
fraud or mistake under the MMPA must meet the heightened pleading
requirements of Rule 9(b), Fed. R. Civ. P. See Khaliki v. Helzberg Diamond
Shops, Inc., 2011 WL 1326660, at *2–3 (W.D. Mo. Apr. 6, 2011).
Rule 9(b) requires that the circumstances underlying a fraud claim be pled
“with particularity.” This rule is to be interpreted “in harmony with the principles
of notice pleading, and to satisfy it, the complaint must allege such matters as the
time, place, and contents of false representations, as well as the identity of the
person making the representation and what was obtained or given up thereby.”
Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009). Simply put, the
complaint must plead the who, what, where, when, and how of the fraud. Id.

– 15 –

As a preliminary matter, both defendants argue that the Myers make no
allegations against them relating to this count. I disagree. Although the relevant
allegations against do not appear in the Myers‟ description of Count V, they are
listed earlier in the complaint and incorporated by reference under Count V.
Investors Title
The scope of the Merchandising Practices Act is broad, but it is subject to
two exceptions. Most importantly here, the statute does not apply to:
Any institution, company, or entity that is subject to chartering,
licensing, or regulation by the director of the department of insurance,
financial institutions and professional registration under chapter 354
or chapters 374 to 385 . . . unless such directors specifically authorize
the attorney general to implement the powers of this chapter or such
powers are provided to either the attorney general or a private citizen
by statute.
Mo. Rev. Stat. § 407.020.2(2). Investors Title argues that it is a company subject
to regulation by the director of the department of insurance as set out in Chapter
381 of the Missouri Revised Statutes and is therefore exempt from the MMPA. I
agree. Chapter 381 is referred to as the “Missouri Title Insurance Act” and its
purpose is “provide the state of Missouri with a comprehensive body of law for the
effective regulation and supervision of title insurance business . . . .” Mo. Rev.
Stat. § 381.011. Among other things, Chapter 381 requires that in most cases, title
agents and agencies must obtain a license, designate a qualified principal to pass an
– 16 –

examination, attend continuing education courses, pay fees for license renewal, and
permit their books and records to be inspected by the director during normal
business hours. See id. §§ 381.115, 381.118, and 381.122. Except as otherwise
provided within the chapter, its provisions “generally shall apply to title insurance,
title insurers, and title agents.” Id. § 381.011. Although Investors Title did not
argue such, it is in fact licensed as required.6 Therefore, it falls within the
exception to the MMPA. I have found no evidence that the director of insurance,
financial institutions and professional registration has directed the Attorney
General to implement the MMPA as against title insurance companies, nor any
evidence that any statute provides to private citizens an MMPA cause of action
against title insurance companies.7 See Smith v. J. Wells Inv. Grp., LLC, No. 0722-

6

The Missouri Department of Insurance, Financial Institutions & Professional Registration
maintains a website where it lists licensed entities and individuals. See “Licensee Look-Up,”
https://sbs-mo.naic.org/Lion-Web/jsp/sbsreports/AgentLookup.jsp.
7
The Myers argue that the exemption for title companies and other regulated businesses has
been nullified. They base this argument on a 1992 amendment to Mo. Rev. Stat. § 407.020.2(2).
In that year, the Missouri legislature modified the exemption, adding the emphasized language
below: “Any institution, company, or entity that is subject to chartering, licensing, or regulation
by the director of the department of insurance, financial institutions and professional registration
under chapter 354 or chapters 374 to 385 . . . unless such directors specifically authorize the
attorney general to implement the powers of this chapter or such powers are provided to either
the attorney general or a private citizen by statute.” The Myers argue that because Section
407.025 gives private citizens the general right to bring MMPA actions, it constitutes a “power”
given to private citizens “by statute” that takes precedence over the exemption. I disagree. This
is a circular argument. In order to negate the title insurance company exemption, the Myers
would have to point to a statute giving private citizens the power to enforce Section 407.020
specifically against title companies. Accord Rashaw v. United Consumers Credit Union, No.
11CV105 ODS, 2011 WL 2110806, at *6 (W.D. Mo. May 26, 2011) (same for credit unions),

– 17 –

CC09226, 2008 WL 8487908, at *2–*3 (Mo. Cir. Ct. June 10, 2008) (granting title
insurance company‟s motion to dismiss plaintiff‟s MMPA claim against it).
Accordingly, I will dismiss Count V as against Investors Title.
First Bank
With regard to First Bank, the Myers have failed to allege enough with
respect to the fourth element of an MMPA claim, that First Bank engaged in an
unfair practice, deception, false promise, omission, or other act declared unlawful
by Mo. Rev. Stat. § 407.020. The Myers do not explain what First Bank
misrepresented (or whether it made any representations to the Myers) or when or
how it made those representations. They allege that First Bank filed the deed of
trust and made written demands to the Myers for payment, but they do not identify
what that payment would have been for or why the filing of the deed of trust was
fraudulent. The Myers do not deny that they were in default on the mortgage loan,
as initially agreed to, so it is not obvious that the written demands were somehow
fraudulent. Although they identify the failure to immediately record the deed of
trust as a concealment, this was not done “in connection with” the Myers‟ purchase
of any good or service, as required by the statute. See State ex rel. Koster v.
Portfolio Recovery Assocs., LLC, 351 S.W.3d 661, 666 (Mo. Ct. App. 2011)
affirmed by 685 F.3d 739, 745 (8th Cir. 2012) (“The contention that one provision of the MMPA
completely negates another violates well-accepted principles of statutory construction.”).

– 18 –

(defendant‟s attempted collection of a debt was not done “in connection with” the
sales transaction leading to the debt because there was “no deception or unfair
practice made to the consumer at or prior to the initial sales transaction between
the consumer and the seller”). Because the Myers have not met the pleading
requirements of Rule 9(b), Fed. R. Civ. P., with respect to their MMPA claim
against First Bank, Count V will be dismissed as against First Bank.
Count VI: Unjust Enrichment
In Count VI, the Myers bring a claim of unjust enrichment. The elements of
a cause of action for unjust enrichment are that: (1) the plaintiff conferred a benefit
on the defendant; (2) the defendant appreciated the benefit; and (3) the defendant
accepted and retained the benefit under inequitable or unjust circumstances. Hertz
Corp. v. Raks Hospitality, Inc., 196 S.W.3d 536, 543 (Mo. Ct. App. 2006). Under
Missouri law, this third element, is “the most significant and most difficult of the
elements.” US Bank Nat’l Ass’n v. Cox, 341 S.W.3d 846, 852 (Mo. Ct. App.
2011). To determine if a defendant accepted or retained a benefit unjustly, a court
considers “whether any wrongful conduct by the defendant contributed to the
plaintiff‟s disadvantage.” S&J, Inc. v. McLoud & Co., L.L.C., 108 S.W.3d 765,
768 (Mo. Ct. App. 2003).

– 19 –

As with Count V, the defendants argue that the Myers make no allegations
against them relating to this count, and it should therefore be dismissed. Again,
although the specific allegations against Investors Title and First Bank do not
appear in the Myers‟ description of Count VI, they are listed earlier in the
complaint and incorporated by reference under Count VI.
The Myers have alleged that they paid Investors Title for a title insurance
policy, that Investors Title knew from the outset that it would not provide any
services in exchange, and that in fact it did not. Though clumsily pled, these
factual allegations are sufficient to state a claim for unjust enrichment. See Brown
v. Kerkhoff, 504 F. Supp. 2d 464, 544–45 (S.D. Iowa 2007) (plaintiffs‟ claim for
unjust enrichment was sufficient to withstand 12(b)(6) motion where they alleged
they paid chiropractor for unnecessary services). Similarly, the Myers have
alleged that they conferred a benefit on First Bank in the form of their property as
security for the line of credit First Bank extended to Middlewest. They have
alleged that they alerted First Bank that Middlewest no longer owned the property
in question but that First Bank failed to release the deed of trust until late July
2008. Again, the Myers‟ complaint is not as clear as it might have been, but I find
that they have stated a claim for unjust enrichment. Therefore, Count VI will not
be dismissed as to either defendant.
– 20 –

Count VII: Loss of Consortium
Under Missouri law, a spouse seeking compensation for loss of consortium
must show that he or she suffered damages arising out of the other‟s injuries. Lear
v. Norfolk & Western Ry. Co., 815 S.W.2d 12, 14 (Mo. Ct. App. 1991). It does not
follow automatically from one spouse‟s injury that the other spouse suffered
damages derivative of the injury. Id. Here, although the Myers allege that they
suffered “emotional distress, anxiety [and] sleeplessness,” they have not alleged
any derivative loss of society, services, affection, companionship, or conjugal
rights that could support a loss of consortium claim. See Novak v. Kansas City
Transit, Inc., 365 S.W.2d 539, 542 (Mo. banc 1963). Therefore, Count VII will be
dismissed as to the moving defendants.
Investors Title‟s Other Motions
Investors Title has moved, in the alternative, for a more definite statement in
the event the plaintiffs‟ claims were not dismissed. Rule 12(e), Fed. R. Civ. P.,
permits motions for a more definite statement “if a pleading to which a responsive
pleading is permitted is so vague or ambiguous that a party cannot reasonably be
required to frame a responsive pleading.” Such a motion is proper “when a party is
unable to determine issues he must meet, or where there is a major ambiguity or
omission in the complaint that renders it unanswerable.” Tinder v. Lewis Cnty.
– 21 –

Nursing Home Dist., 207 F. Supp. 2d 951, 959 (E.D. Mo. 2001) (citations omitted).
Motions for a more definite statement are rarely granted, however, in light of the
liberal notice pleading standard of Rule 8 and the liberal discovery available to
both sides. Tinder, 207 F. Supp. 2d at 959–60. As it applies to the remaining
count against Investors Title, I find that their motion should be denied. The Myers
allege enough facts in support of their unjust enrichment claim for Investors Title
to be able to frame a responsive pleading.
Investors Title has also moved to strike various allegations from the
complaint under Rule 12(f). This rule provides for striking matters that are
“redundant, immaterial, impertinent, or scandalous” from a pleading. Parties filing
a motion to strike under Rule 12(f) bear the burden of “provid[ing] the Court any
reason why this language is immaterial, impertinent, or scandalous.” Copeland v.
Hussmann Corp., 462 F. Supp. 2d 1012, 1023 n.11 (E.D. Mo. 2006). Investors
Title has failed to satisfy this burden because it has offered no reason or support for
its assertions that certain matters should be stricken. Therefore, its motion to strike
will be denied.
VII. Conclusion
For the foregoing reasons,

– 22 –

IT IS HEREBY ORDERED that defendant Greg Fuesting‟s motion to
dismiss [#12] is granted. Fuesting is dismissed from the case.
IT IS FURTHER ORDERED that:
Defendant Investors Title Company‟s motion to dismiss [#33] is granted in
part. Counts I, II, III, IV, V, and VII, are dismissed as to Investors Title. The only
remaining count against Investors Title Company is Count VI, Unjust Enrichment.
Defendant First Bank‟s motion to dismiss [#35] is granted in part. Counts I,
II, III, IV, V, and VII, are dismissed as to First Bank. The only remaining count
against First Bank is Count VI, Unjust Enrichment.
Defendant Investors Title Company‟s motion for a more definite statement
and motion to strike are denied.
Plaintiffs‟ motion for leave to respond to Investors Title‟s reply [#41] is
granted insofar as their motion provides the substance of their proposed reply. No
further surreply may be filed.
Defendants Greg Fuesting and First Bank‟s motion for extension of time to
file a reply [#42] is denied as moot.
Plaintiffs‟ motion for partial summary judgment remains under submission.

– 23 –

IT IS FINALLY ORDERED that defendants Investors Title Company and
First Bank shall file answers to Count VI within fourteen days of the date of this
Memorandum and Order.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of February, 2014.

– 24 –