Smith v. Bank of America et al
MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the Joinder of Defendants Brian Moynihan and Gene E. Pulliam in Defendant Bank of America, N.A.'s Motion to Dismiss (ECF No. 26 ) and Bank of America, N.A. 's Motion to Dismiss for Failure to State a Claim (ECF No. 12 ) are GRANTED. An appropriate Judgment is filed herewith.. Signed by District Judge Ronnie L. White on 5/11/2017. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:16-CV-1917 RLW
BANK OF AMERICA,
MEMORANDUM AND ORDER
This matter is before the court on Bank of America, N.A.'s Motion to Dismiss for Failure
to State a Claim (ECF No. 12) and Joinder of Defendants Brian Moynihan and Gene E. Pulliam
in Defendant Bank of America, N.A.'s Motion to Dismiss (ECF No. 26). 1 This matter is fully
briefed and ready for disposition.
Plaintiff Eddie Smith ("Smith") alleges that Bank of America, N.A. ("BANA'') and
individual defendants discriminated against him by denying him a loan to purchase a property at
4253 Monsols, Florissant, Missouri 63034. (Plaintiffs Complaint, ECF No. 7, ifll). Smith
The Court grants the Joinder of Defendants Brian Moynihan and Gene E. Pulliam in Defendant
Bank of America, N.A.'s Motion to Dismiss (ECF No. 26) and, therefore, refers to Bank of
America, Brian Moynihan and Gene E. Pulliam as the "Defendants" that filed the Motion to
In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint
to be true and construes all reasonable inferences most favorably to the complainant. US ex rel.
Raynor v. Nat'! Rural Utilities Co-op. Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012); Eckert v.
Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008).
states that race-based discrimination motivated BANA' s decision not to enter into a mortgage
loan with Smith.
Smith alleges four causes of action for "Racial Decrimitation against Defendants Bank of
America" (Count I), "No [Uniform Residential Loan Application] URLA and Letter of Action
Taken and Refusal to Provide Community Reinvestment Act Portfolio (CRA)" (Count II);
"Racial Decrimitation Coverup Defendant BOA [BANA] 06 Fraudulent URLA and Letter of
Action Take" (Count III); and "Criminal Action" (Count IV).
Standard of Review
To survive a motion to dismiss, a complaint "must contain sufficient factual matter,
accepted as true, to ' state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic Corp., v.
Twombly, 550 U.S 544, 570 (2007). A "formulaic recitation of the elements of a cause of
action" will not suffice. Twombly, 550 U.S. at 555 . "The plausibility standard is not akin to a
'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted
unlawfully. " Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).
A. Fed. R. Civ. P. 8
Defendants contend that the factual allegations in the Complaint fail to satisfy the
pleading standards of Fed. R. Civ. P. 8. (ECF No. 13 at 3-4). Defendants assert that Smith' s
Complaint contains only vague, conclusory allegations of misconduct that fail to satisfy the
requirements of Rule 8.
As to his claims of discrimination, Smith "merely alleges he was
discriminated against because he did not get the loan he believed he would receive. " (ECF No.
13 at 4). Smith further alleges he saw a "racially motivated discriminating expression." (ECF
No. 13 at 4 (citing ECF No. 7 at 6)). Smith also claims that his phone calls were not returned as
evidence of discrimination. (ECF No. 13 at 4 (citing ECF No. 7 at 6)).
He also believes he was
not provided an Uniform Residential Loan Application (URLA) "due to racism". (ECF No. 13
at 4 (citing ECF No. 7 at 7)).
Defendants claim that all of these allegations merely assert
discrimination in a conclusory manner, without providing any substantive claims. Therefore,
Defendants argue that Smith' s Complaint should be dismissed.
Thereafter, Smith filed a response to Defendant's Motion to Dismiss for Failure to State a
Claim (ECF No. 19) and an overlong Memorandum in Support of a Response to Defendant's
Motion to Dismiss for Failure to State a Claim (ECF No. 19-1). Under the local rules of the
Eastern District of Missouri, a party can file an opposition memorandum "containing any
relevant argument and citations to authorities on which the party relies."
4.0l(B)). Likewise, the local rules provide that " [n]o party shall file any motion, memorandum
or brief which exceeds fifteen (15) numbered pages, exclusive of the signature page and
attachments, without leave of Court." (E.D.Mo. L.R. 4.0l(D)). Smith has essentially filed two
opposition memoranda. The Court typically would strike Smith' s overlong and improper filing.
However, because Smith is pro se and his memoranda are largely duplicative and do not change
the Court' s decision, the Court considers both filings for purposes of the Motion to Dismiss. 3
The Court, however, will strike the purported new causes of action that Smith includes in his
response. (ECF No. 19-1). Smith makes allegations of defamation (ECF No. 19-1 at 6),
violations of the Fair Housing Act (ECF No. 19-1at21 , 23), breach of fiduciary duty (ECF No.
19-1at21-22), and failure to modify (ECF No. 19-1 at 25). See ECF No. 21 at 2. Because these
allegations were not included in Smith' s Complaint, the Court will not consider these new
claims. See Scott v. Wells Fargo Bank, NA., No. CIV. 10-3368 MJD/SER, 2011 WL 3837077,
at *10 (D. Minn. Aug. 29, 2011) ("In essence, by raising these representations in his opposition
brief, Plaintiff is attempting to amend his Amended Complaint to include new allegations of
fraud. Such action is impermissible."); Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d
Smith contends that he has alleged claims under Title VIII of the Civil Rights Act of
1968. (ECF No. 19). Smith further states that Defendants should have filed a motion for more
definite statement, not a motion to dismiss. Smith nevertheless states that his Complaint states
"facial material facts that support each element of Plaintiffs claims and thus withstands
Defendants Counsel Gardner' s Motion to Dismiss." (ECF No. 19 at 7).
Rule 8(a) and (e) of the Federal Rules of Civil Procedure specifies that a complaint must
contain a "short and plain statement" showing that the Plaintiff "is entitled to relief."
Fed.R.Civ.P. 8; Miller/Perry v. Norris, No. 1:10-CV-00033-BSM, 2010 WL 3199663, at *2
(E.D. Ark. July 28, 2010), report and recommendation adopted, No. 1:1O-CV-00033-BSM, 2010
WL 3199671 (E.D. Ark. Aug. 12, 2010).
The complaint must state enough to "give the
defendant fair notice of what the ... claim is and the grounds upon which it rests." Erickson v.
Pardus, 551 U.S. 89, 93 (2007)(per curiam)(quoting Twombly, 550 U.S. at 555). Although this
is the early stage of the litigation and the Court construes Smith' s Complaint liberally, the Court
holds that Smith's Complaint is insufficient. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976))
(construe pro se complaint liberally)). Smith has identified several purported causes of action.
However, the only factual basis for these claims seems to be that BANA denied Smith a loan.
Otherwise, Smith provides nothing but legal conclusions which are insufficient to state a claim
992, 995 (8th Cir. 1989) (" [I]t is axiomatic that a complaint may not be amended by the briefs in
opposition to a motion to dismiss. To hold otherwise would mean that a party could unilaterally
amend a complaint at will, even without filing an amendment, .. . simply by raising a point in a
brief.") (internal citations omitted); see also Spectra Merch. Int'l, Inc. v. Euler ACI Collection
Servs ., Inc., No. 03 C 899, 2004 WL 1393600, at *6 n. 4, (N.D. Ill. June 18, 2004) ("Just as a
plaintiff cannot amend his complaint through arguments in his brief in opposition to a motion for
summary judgment, the plaintiff cannot use a brief to present new allegations or particulars of
fraud not contained in the complaint") (citations omitted).
under Fed. R. Civ. P. 8. Smith's Complaint "tenders 'naked assertion[s]' devoid of 'further
factual enhancement." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Smith's "bald
assertions fail to provide any facts necessary to render [his] claims plausible." Sorem v. Bank of
NY Mellon, No. CIV. 13-290 DWF/JSM, 2013 WL 4611115, at *3 (D. Minn. Aug. 29, 2013).
Therefore, the Court grants the Motion to Dismiss for failure to comply with Rule 8.
B. Racial Discrimination
Even if Smith satisfied the standard under Rule 8 (which he does not), Smith's racial
discrimination claim fails to state a claim. Defendants note that Smith failed to set forth the
statutes under which he claims Defendants discriminated against him. Defendants claim that
Smith's race discrimination claim should be dismissed because "it is impossible to determine
which cause of action relates to which statute or how BANA allegedly violated the statutes."
(ECF No. 13 at 5). 4
Further, even if Smith tried to allege a discrimination claim under 42 U.S.C. §1981 or
§1982, Defendants maintain Smith has not properly alleged this claim. (ECF No. 13 at 5).
"Sections 1981 and 1982 protect citizens' rights to make and enforce contracts and purchase both
personal and real property without any impairment due to private or public racial
discrimination." Daniels v. Dillard's Inc., 373 F.3d 885, 887 (8th Cir. 2004). The elements of a
claim under 42 U.S.C. §1981 are: (1) membership in a protected class, (2) discriminatory intent
on the part of the defendant, (3) engagement in a protected activity, and (4) interference with that
activity by the defendant. See Green v. Dillard's, Inc., 483 F.3d 533, 538 (8th Cir. 2007);
Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). "The prima facie elements of a§
1982 case parallel those of a § 1981 case and require that a plaintiff show (1) membership in a
Smith, however, seems to make clear in his briefing that his claims are brought under Sections
1981and1982 in his opposition brief. (ECF No. 19-1at3).
protected class; (2) discriminatory intent on the part of the defendant and (3) interference with
the rights or benefits connected with the ownership of property." Daniels, 373 F.3d at 887
(citing Zhu v. Countrywide Realty Co. , Inc., 165 F.Supp.2d 1181 , 1199 (D. Kan. 2001)).
Defendants note that a plaintiff must do more than state naked assertions of
discrimination in order to state a claim under sections 1981 and 1982. Defendants contend Smith
merely asserted that he was not offered a loan to purchase property. (ECF No. 13 at 6). In
addition, Defendants maintain that Smith has not alleged that similarly-situated people of
different races were allowed to enter into a contract as proposed by Smith. (ECF No. 13 at 6).
These pleading deficiencies are fatal to Smith' s claim.
At this stage of the litigation, the Court holds that Smith fails to state a cause of action
for discrimination. Smith indicates that he applied for a loan but never provides any factual basis
for this claim and fails to link the denial of his claim to his race. Although the Court gives
deference to Smith' s factual allegations that no URLA was completed, Smith provides no
allegations that Defendants denied Smith the ability to participate in the loan process based upon
his race. The Court holds that Smith' s Complaint, when construed liberally, fails to allege a
claim that Smith and his loan application were not properly considered because of his race. The
Court thereby grants Defendants' Motion to Dismiss without prejudice.
IT IS HEREBY ORDERED that the Joinder of Defendants Brian Moynihan and Gene
E. Pulliam in Defendant Bank of America, N.A. ' s Motion to Dismiss (ECF No. 26) and Bank of
America, N.A. ' s Motion to Dismiss for Failure to State a Claim (ECF No. 12) are GRANTED.
An appropriate Judgment is filed herewith.
Dated fJUsJt;,.y of May, 2017.
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