Henry v. Midfirst Bank et al

Filing 32

ORDER - Midfirst Defendants' and MCB's motions to dismiss 4 6 19 are granted The dismissal of these defendants is without prejudice. If Plaintiff wishes to pursue her claims against these defendants, she must file a proposed amended complaint which complies with the federal pleadings standards within sixty (60) days. All the remaining motions (Docs. 8-9, 11-17) are denied as moot. Signed on 8/11/14 by Chief District Judge Greg Kays. (Francis, Alexandra) Modified on 8/11/2014 - mailed to plaintiff (Francis, Alexandra).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LISA R. HENRY,
Plaintiff,
v.
MIDFIRST BANK, et. al.,
Defendants.

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No. 4:13-CV-01141-DGK

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
This case involves an impending foreclosure sale. Pro se Plaintiff Lisa Henry alleges that
a litany of defendants, including Defendant Midfirst Bank (“Midfirst”), violated various state and
federal laws and regulations in their attempt to foreclose upon her property. Plaintiff filed a
twenty-count lawsuit in the Circuit Court of Jackson County, Missouri, and then Midfirst
removed to this Court, alleging jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332, 1441.
Now before the Court are numerous motions, including three motions to dismiss.
Defendants Midfirst, Midland Mortgage, Vicki Peters, G. Jeffrey Records, Thad Burr, Shapiro &
Weisman, L.C., S&W Foreclosures, Shapiro & Kreisman, LLC, Gerald M. Shapiro, Michael
Gilgrist, and David Kreisman (collectively the “Midfirst Defendants”)1 requests the Court
dismiss Plaintiff’s complaint (the “Complaint”) pursuant to Rule 12(b)(6) for failure to state a
claim (Docs. 4, 6). Defendant Michaelson, Connor, and Boul, Inc. (“MCB”) requests dismissal
pursuant to Rule 12(b)(5) and 12(b)(6), arguing respectively that service of process was improper
and that the Complaint fails to state a claim (Doc. 19). There are also numerous motions from
Plaintiff and Midfirst regarding various discovery requests (Docs. 8-9, 11-17).

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The Court collectively refers to these defendants as the Midfirst Defendants for ease of understanding. The
Court’s grouping in no way insinuates that all these defendants are associated with Midfirst.

Because the Complaint fails to state a claim, the Court GRANTS the motions to dismiss
(Docs. 4, 6, 19).

And because the Complaint fails to state a claim against Midfirst, the Court

DENIES AS MOOT all discovery-related motions asserted by and against them (Docs. 8-9, 1117).
Background
The Complaint contains limited facts, thus the Court adopts some contextual facts from
the Midfirst Defendants’ motions. Plaintiff owns property located in Kansas City, Missouri (the
“Property”). In 1998, Plaintiff executed a promissory note and deed of trust on the Property. At
some point in the recent past, one or more of the defendants initiated foreclosure proceedings on
the Property.
On September 13, 2013, Plaintiff, proceeding pro se, filed a twenty-count complaint
alleging that the defendants’ foreclosure efforts violated a number of state and federal statutes
and regulations. The Complaint lacks any facts suggesting the various defendants’ roles in the
foreclosure or how their respective actions violated the cited statutes and regulations. For
instance, Count 1 alleges a putative claim for violating the Fair Debt Collections Act, 15 U.S.C.
§§ 1692-1692p, stating: “Defendants are in violation of the Fair Debt Collections Act, resulting
in unjust enrichment for defendants.” (Doc. 1-1 at 2). Each of the remaining nineteen counts
contains allegations in the exact same form. To remedy these alleged violations, Plaintiff
requests an injunction to prevent foreclosure, a declaration of title in her favor, a refund of all
mortgage payments, and various other forms of relief.
After filing the Complaint, Plaintiff attempted to serve all defendants via certified mail.
Once Midfirst received notice of the suit, it removed the action to this Court on November 19,
2013. The Midfirst Defendants then immediately filed two motions to dismiss for failure to state
a claim. Plaintiff failed to file a timely response to either motion. Instead, between December 2,
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2013, and January 9, 2014, she filed numerous motions aimed at procuring discovery from
Midfirst. On January 31, 2014, MCB filed its motion to dismiss for improper service and failure
to state a claim. Again, Plaintiff failed to timely respond. On February 10, 2014, the Court
ordered Plaintiff to respond to the three motions to dismiss by February 28, 2014, and prohibited
her from filing any more discovery motions until she complied with the Court’s order. Later, the
Court extended the deadline to March 28, 2014, but she once again failed to respond. There still
being no response to the motions to dismiss, the Court finds them ripe for review.
Standard
A court must dismiss a complaint if it fails to state a claim on which relief can be granted.
Fed R. Civ. P. 12(b)(6). To survive a 12(b)(6) motion to dismiss, the complaint must do more
than recite the bare elements of a cause of action. Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009).
Rather, it must include “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “While a complaint ... does not need detailed
factual allegations,” a plaintiff must provide the grounds of his entitlement with more than mere
“labels and conclusions,” or “a formulaic recitation of the elements of a cause of action.” Benton
v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008) (quoting Twombly, 550 U.S. at
555 (internal citations omitted)). A complaint that alleges only “naked assertion[s] devoid of
‘further factual enhancement’” will not survive a motion to dismiss. Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557).
Discussion
I.

The Complaint fails to state a claim against the Midfirst Defendants.
In their two motions, the Midfirst Defendants devote nearly twenty pages to discussing

various bases supporting dismissal. The Court need not address all their arguments, because it
finds that the Complaint is patently deficient under Twombly.
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Even with the liberal construction afforded pro se pleadings, see Johnson v. Arden, 614
F.3d 785, 798 (8th Cir. 2010), the Complaint still fails to state a claim for relief. Aside from
stating that “defendants” are attempting to foreclose upon the Property, the Complaint lacks any
facts to place the named defendants on notice of their alleged wrongdoing. Each and every count
consists of a conclusory statement that “defendants” violated a certain statutory or regulatory
provision. There is no indication what role each defendant played in the alleged wrongful
foreclosure scheme or how their respective actions amount to a cognizable legal claim. As these
are “naked assertions devoid of further factual enhancement,” the Court cannot conclude that
Plaintiff is plausibly entitled to relief. See Iqbal, 556 U.S. at 678. Accordingly, the Court finds
the Complaint fails to state a claim against the Midfirst Defendants, and they are dismissed
without prejudice.
Since the Court dismisses Midfirst, all discovery-related motions filed by and against
them are denied as moot. Even if the motions were not mooted, the Court would deny all
motions asserted by Plaintiff because the parties have yet to hold a Rule 26(f) conference and
many of the requests are completely irrelevant to the current dispute. See Fed. R. Civ. P. 26(b)
(“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense….”); Fed. R. Civ. P. 26(d) (“A party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f)….”).
II.

The Complaint fails to state a claim against MCB.
MCB first contends the Complaint must be dismissed because Plaintiff’s service of

process failed to comply with Missouri law. The Court declines to address this argument
because even assuming that process was improper, the Court would ordinarily quash service and
allow Plaintiff to re-serve. See Lamb v. Bank of Am., N.A., No. 4:11-CV-819-CAS, 2012 WL
87146, at *2 (E.D. Mo. Jan. 11, 2012) (noting that when pro se plaintiff fails to properly serve a
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defendant the district court would typically quash service and order the plaintiff to re-serve the
defendant rather than dismiss the action without prejudice).
In any event, MCB is still entitled to the ultimate relief it requests—dismissal. MCB, like
the Midfirst Defendants, contends the Complaint fails to state a claim against it. The Court
agrees. As discussed previously, the Complaint is devoid of any facts, much less sufficient facts
to support a plausible claim. Thus, the Court must dismiss all claims asserted against MCB.
Conclusion
For the foregoing reasons, the Midfirst Defendants’ and MCB’s motions to dismiss
(Docs. 4, 6, 19) are GRANTED. The dismissal of these defendants is WITHOUT PREJUDICE.
If Plaintiff wishes to pursue her claims against these defendants, she must file a proposed
amended complaint which complies with the federal pleadings standards within sixty (60) days.
All the remaining motions (Docs. 8-9, 11-17) are DENIED AS MOOT.
IT IS SO ORDERED.
Date:

August 11, 2014

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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