ROGER v. MORRICE et al

Filing 12

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 4/23/2013. (tf, n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

FRANCES ROGERS,

HON. JEROME B. SIMANDLE
Plaintiffs,

Civil No. 12-7910 (JBS/KMW)

v.
MEMORANDUM OPINION
BRAD A. MORRICE, et al.,
Defendants.

SIMANDLE, Chief Judge:
Plaintiff Frances Rogers, representing herself and
proceeding in forma pauperis, alleges that Plaintiff and her late
husband, Thomas Rogers, were victims of fraud related to a
foreclosure on their New Jersey residence. (Compl. ¶ 1.)
Plaintiff moves to amend her Complaint [Docket Item 9], even
though the Court has not completed screening Plaintiff’s
Complaint as required by 28 U.S.C. § 1915(e). For the reasons
explained below, the motion will be granted and the Court will
screen the Amended Complaint. The Court finds as follows:
1. On January 28, 2013, the Court granted Plaintiff’s
petition to proceed in forma pauperis but ordered Plaintiff to
refile her Complaint in accordance with the “short and plain
statement” requirement of Fed. R. Civ. P. 8(a), because
Plaintiff’s original Complaint was more than 400 pages long,
inclusive of exhibits. [Docket Item 6 at 1-4.] At the same time,

the Court dismissed three counts (theft, manslaughter and “Aiding
and Abetting”) because those counts referenced parts of New
Jersey’s criminal code that did not provide for civil remedies.
[Id.]
2. Plaintiff refiled her Complaint [Docket Item 8]. Less
than a week later, before the Court had screened the Complaint
pursuant to § 1915(e), Plaintiff filed this motion to amend.
[Docket Item 9.] At present, none of the Defendants have been
served with process in this matter.
3. The Amended Complaint is half the length of the original
Complaint, but is still voluminous. Plaintiff’s Amended Complaint
is more than 100 pages and Plaintiff has attached nearly 300
individual exhibits, including some that are more than 100 pages
each. While bringing a motion to amend at this juncture is
procedurally unusual, the Court will grant the motion to amend
and the latest Amended Complaint [Docket Item 9] will be treated
as the pleading for screening purposes. The Court will proceed to
screen the Amended Complaint.
4. Suits brought in forma pauperis are governed by 28 U.S.C.
§ 1915, even if the party bringing suit is not a prisoner. See
Schneider v. Legal Servs. Corp., No. 08-5981, 2011 WL 53177
(D.N.J. Jan. 7, 2011) (applying § 1915(e)(2) to a case not
brought by a prisoner, citing Grayson v. Mayview State Hosp., 293
F.3d 103, 109-10 (3d Cir. 2002)); Brooks v. Cent. Dauphin Sch.

2

Dist., No. 09-2482, 2010 WL 771627, at *4 (M.D. Pa. Feb. 26,
2010) (Ҥ 1915(e)(2) applies to all in forma pauperis complaints,
and not just to prisoners”). Section 1915(e)(2)(B) requires the
court to dismiss the case, or any portion thereof, if the action
“(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” At the same
time, “[w]here the plaintiff is a pro se litigant, the court has
an obligation to construe the complaint liberally.” Giles v.
Kearney, 571 F.3d 318, 322 (3d Cir. 2009).
5. The Court has jurisdiction in this case under 28 U.S.C. §
1331, as Plaintiff brings claims under federal law and alleges
violations of her constitutional civil rights, and under 18
U.S.C. § 1964(c), which confers federal jurisdiction for civil
RICO (“racketeer influenced and corrupt organizations”) claims.
The Court has supplemental jurisdiction over state-law claims
pursuant to 28 U.S.C. § 1367(a). Venue is proper in this District
because the residential property at issue is located in
Willingboro, New Jersey, and much of the relevant conduct
occurred while Plaintiff was a resident of Burlington County,
which is within this Court’s vicinage.
6. Briefly, the facts of the case are this. Plaintiff and
her late husband, Thomas Rogers, bought a home in Willingboro,
N.J., with a fixed-rate mortgage that they refinanced three times

3

with adjustable rate mortgages. (Am. Compl. ¶¶ 54-57.) Plaintiff
and her husband believed they qualified for a loan modification,
and repeatedly requested a modification but had tremendous
difficulty communicating with Defendant Litton Loan Servicing,
LP, which, by that time, was servicing the loan. (Id. ¶¶ 82-83.)
Eventually, Plaintiff and her husband could not make their
monthly payments. (Id. ¶ 101.) Plaintiff and her husband, and
later, Plaintiff alone, continued to fight for a loan
modification, and Litton employees continued to request documents
that Plaintiff asserts she already provided to Litton, stalling
any progress toward a decision on modification. (Id. ¶ 105.)
Plaintiff places great emphasis in the Amended Complaint on the
fact that “their property was never assigned to GSAMP Trust 2007
- NC1 within 90 days after the February 1, 2007 cut-off date,”
however the significance of this fact is unclear from Plaintiff’s
pleading. (Id. ¶ 106.) Eventually, Plaintiff received a letter
from Litton indicating the rate on her mortgage was 7.05 percent,
but Plaintiff maintains that the rate and the stated amount due
was incorrect and concludes that “this figure is fraud” and that
Litton committed “fraudulent breach of the terms within the note,
along with the manipulation and fraudulent concealment of the
interest rate by Litton . . . .” (Id. ¶ 122.) Foreclosure
proceedings were initiated, but Plaintiff “decided to enter a
short sale agreement with Litton” and moved to Texas to live with

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her daughter. (Id. ¶ 143.) Plaintiff asserts that the foreclosure
proceedings were fraudulent. (Id. ¶ 135.) Plaintiff also asserts
that she made payments toward the mortgage that were never
credited to her account and that Litton agreed to accept some
payments but refused others. (Id. ¶¶ 131-32.) Plaintiff also
describes a long struggle with Litton to receive an insurance
check issued for Plaintiff’s benefit for damage on the property.
(Id. ¶¶ 142-68.) Plaintiff spends a tremendous amount of her
brief describing the general mortgage and foreclosure crisis and
several related lawsuits and legislative reports on the topic.
6. The Court now turns to the specific Counts alleged.
Defendant Brad A. Morrice must be terminated from this action
because Plaintiff sues Mr. Morrice “in his official capacity as
CEO and co-founder of the defunct New Century Financial
Corporation, a corporation chartered in California.” (Am. Compl.
¶ 11.) Plaintiff took out her original mortgage on the property
with Mr. Morrice’s company (id. ¶ 54), however, Plaintiff does
not plead that Mr. Morrice participated in, or directed others to
commit, any alleged fraud or other wrongdoing. Plaintiff pleads
no facts that raise a plausible inference that Mr. Morrice’s
personal conduct could ground liability in these circumstances,
given the legal protections afforded to officers of corporations.
Corporate officers “do not incur personal liability for torts of
the corporation merely by reason of their official position,

5

unless they participate in the wrong or authorize or direct that
it be done.” PMC, Inc. v. Kadisha, 93 Cal. Rptr. 2d 663, 670
(Cal. Ct. App. 2000); see also Wiater Bldg. & Design, Inc. v.
Gutierrez, No. L-2374-06, 2013 WL 28090, at *8 (N.J. Super. Ct.
App. Div. Jan. 3, 2013) (stating that a corporate officer incurs
liability when he or she commits a tort or directs a tortious act
to be done “or participates or cooperates therein”). Without
factual allegations about Defendant Morrice’s personal conduct,
all claims against him must be dismissed.
7. All state-law claims against Phelan Hallinan & Schmeig,
PC, and Phelan Hallinan & Schmeig, LLP, as well as the Phelan
attorneys and employees must be dismissed because (1) the New
Jersey litigation privilege applies and (2) Plaintiff cannot
challenge the validity of assignments transferring Plaintiff’s
mortgages from one holder to another. The only allegations
against the Phelan attorneys involved in the foreclosure -Defendants Rosemarie Diamond, Brian Yoder, Brian Blake, Thomas M.
Brodowski, Vladimir Palma, and Sharon L. McMahon -- are that they
“filed a fraudulent foreclosure complaint with the Office of the
Clerk of the Superior Court of New Jersey on behalf of BANA as
Trustee of GSAMP Trust 2007-NC1.” (Am. Compl. ¶¶ 108, 134.)
Plaintiff alleges that the above-named Phelan attorneys “served
[Plaintiff] with a motion to foreclose on her New Jersey
residential property . . . .” (Id. ¶ 134.) The New Jersey

6

litigation privilege ensures that statements made by attorneys
and their representatives “made in the course of judicial or
quasi-judicial proceedings are absolutely privileged and immune
from liability.” Giles v. Phelan Hallinan & Schmieg, LLP, No. 116239, 2012 WL 4506294, at *12 (D.N.J. Sept. 28, 2012) (quoting
Peterson v. Ballard, 679 A.2d 657, 659 (N.J. Super. Ct. App. Div.
1996) and citing Erickson v. Marsh & McLennan Co., Inc., 569 A.2d
793 (N.J. 1990)); . This immunity extends to “statements made by
attorneys outside the courtroom, such as in attorney interviews
and settlement negotiations.” Loigman v. Twp. Comm. of Twp. of
Middletown, 889 A.2d 426, 433 (N.J. 2006); see also Giles, 2012
WL 4506294, at *12. New Jersey courts “have not applied a fraud
exception to the litigation privilege . . . .” Giles, 2012 WL
4506294, at *15. The only allegedly wrongful conduct by these
Defendants is the allegedly fraudulent filing related to
foreclosure proceedings in New Jersey Superior Court; therefore,
the litigation privilege applies, at least as to all state-law
claims against these defendants.1
8. The New Jersey litigation privilege also bars Plaintiff’s
Count Twenty-One (“Fraud Upon the Court”), which must be
dismissed. Whatever duties Defendants owed to the court do not

1

This Court, in Giles declined to address whether the
litigation privilege bars federal RICO claims against these
Defendants. Giles, 2012 WL 4506294, at *15. The Court declines to
decide this issue as part of the § 1915 screening.
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give rise to a private right of action by another party.
9. The only other specific allegations of wrongdoing against
the Phelan law firms, attorneys or employees are against
Defendants Judith T. Romano and Eugene Jaskiewicz, both Phelan
employees, or unnamed employees.2 Plaintiff alleges that
Defendant Romano “civil aided and abetted the fraudulent
concealment by executing the assignment of complainant’s mortgage
note to the trust,” which was recorded in the Burlington County
Clerk’s office on July 29, 2009. (Am. Compl. ¶¶ 107, 129, 134,
139.) Plaintiff asserts that Defendant Jaskiewicz was “the notary
who attested to this mortgage assignment . . . .” (Id. ¶¶ 107,
129.) To the extent Plaintiff seeks to challenge the assignment
as fraudulent, Third Circuit case law bars such a claim. See
Giles, 2012 WL 4506294, at *20 (“Plaintiffs may not, therefore,
challenge any assignments to which they were not a party”); Ifert
v. Miller, 138 B.R. 159, 163, 166 (E.D. Pa. 1992), aff’d, 981
F.2d 1247 (3d Cir. 1992).
9. The Court detects no specific factual allegations against
Defendants Lawrence Phelan, Francis Hallinan or Daniel Schmeig.
Therefore, all claims against these defendants will be dismissed
and they shall be terminated from the action.

2

Plaintiff asserts, for instance, that the law firm sent
her correspondence demanding payment, and Plaintiff asserts that
“PHS falsely declared [Defendant] Litton as the “Noteholder” and
the “lender” despite BANA being proclaimed the “Noteholder” and
Litton the “servicer[.]” (Am. Compl. ¶¶ 138-39.)
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10. Count Six of the Amended Complaint (“Common Law Gross
Reckless Manslaughter”) must be dismissed because it is facially
time-barred. Throughout the Amended Complaint, Plaintiff alleges
that Defendants’ conduct contributed to the death of her husband,
Thomas Rogers, who “succumbed to his battle with cancer” on June
30, 2009. (Am. Compl. ¶ 108.) The Court construes Count Six to be
a claim for wrongful death, and under N.J. Stat. Ann. § 2A:31-3,
any action for death by wrongful act “shall be commenced within 2
years after the death of the decedent . . . .” Thomas Rogers died
in 2009, and Plaintiff did not bring this action until December
28, 2012. Therefore, any claim for wrongful death is barred by
the state statute of limitations and must be dismissed.
11. Count Nine of the Amended Complaint must be dismissed
(“Joint Enterprise Against all Defendants, Actionable Pursuant to
Common Law”), because the Court knows of no independent cause of
action “Joint Enterprise” cognizable under New Jersey law. The
Court construes Count Nine to allege some kind of civil
conspiracy, that the Defendants joined together to perpetrate an
alleged fraud on Plaintiff: “Plaintiff alleges and believes the
Defendants are operating a joint enterprise . . . .” (Am. Compl.
¶ 216.) However, such a claim would be duplicative of either
Count Four (“Civil Aiding and Abetting”) which is a cause of

9

action recognized in New Jersey,3 or Count Eight (“Civil
Conspiracy to Defraud”). Therefore, Count Nine will be dismissed.
12. To the extent Plaintiff brings Counts Fourteen
(“Deprivation of Property - Unlawful Seizure - Malicious
Foreclosure Prosecution”) and Fifteen (“Conspiracy to interfere
with civil rights”) under 42 U.S.C. § 1983, those claims must be
dismissed because Plaintiff does not allege that her rights were
violated by persons acting under color of state law, that is, by
state actors. All of the Defendants here are private actors, and
Plaintiff has pleaded no facts from which inferences may
reasonably be drawn to suggest that these private individuals or
corporations were acting under color of state law. See Benn v.
Universal Health Sys., Inc., 371 F.3d 165, 169-70 (3d Cir. 2004)
(“To establish a claim under § 1983, [the plaintiff] must show
that the defendants . . . were state actors . . . .”). Because
courts “consistently look[] to federal § 1983 jurisprudence for
guidance” when interpreting the New Jersey Civil Rights Act, N.J.
Stat. Ann. § 10:6-1, et seq. (“NJCRA”),4 and to the extent Counts
Fourteen and Fifteen allege a violation of the NJCRA, those

3

See Bondi v. Citigroup, Inc., No. L-10902-04, 2005 WL
975856, at *17 (N.J. Super Ct. Law Div. Feb. 28, 2005) (stating
that courts in this circuit and in New Jersey recognize “civil
aiding and abetting liability” as described in the Restatement
(Second) of Torts § 876(b)).
4

See Gonzalez v. Auto Mall 46, Inc., Nos. L-2412-09 & L216-10, 2012 WL 2505733, at *4 (July 2, 2012).
10

claims must fail because Plaintiff does not plead state action.
See also Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443
(D.N.J. 2011) (“This district has repeatedly interpreted NJCRA
analogously to § 1983"). Furthermore, because Count Sixteen
alleges violations of the NJCRA as well, for the foregoing
reasons Count Sixteen must be dismissed.
13. To the extent Plaintiff attempts to bring a Bivens
action in Count Fourteen (“Implied Cause of Action pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)”), the
claim must be dismissed because the Bivens doctrine recognizes
“an implied private right of action for damages against federal
officials,” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012),
and Plaintiff does not name any federal officials as Defendants.
Counts Fourteen and Fifteen, then, may only survive if they state
a claim under 42 U.S.C. § 1985.
14. The Court construes Count Fifteen to allege a conspiracy
to interfere with Plaintiff’s federally protected civil rights
under 42 U.S.C. § 1985(3), based on racial animus.5 Plaintiff
does not state which of her federal rights Defendants have
violated, but she does assert that she “is an African American

5

Guiding the Court’s interpretation is the fact that
actions alleging conspiracies motivated by economic or commercial
animus are not actionable under § 1985(3), United Bhd. of
Carpenters, Local 610 v. Scott, 463 U.S. 825, 838 (1983), and the
young and elderly who cannot afford housing are not a protected
class for purposes of § 1985. de Botton v. Marple Twp., 689 F.
Supp. 477, 482 (E.D. Pa. 1988).
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Senior Citizen and part of a protected class.” (Am. Compl. ¶ 10.)
See Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997) (“the reach
of section 1985(3) is limited to private conspiracies predicated
on ‘racial, or perhaps otherwise class based, invidiously
discriminatory animus’”) (quoting Griffin v. Breckenridge, 403
U.S. 88, 91 (1971)). To state a claim under § 1985(3) a plaintiff
must plead, among other things, a conspiracy “motivated by a
racial or class based discriminatory animus designed to deprive,
directly or indirectly, any person or class of persons to the
equal protection of the laws . . . .” Id. Accordingly, Count
Fifteen must be dismissed because Plaintiff’s Amended Complaint
contains no facts that support a claim of conspiracy motivated by
racial animus. Plaintiff generally alleges that “Willingboro, New
Jersey is a predominantly African American community, therefore,
making its citizens the prime targets for worst mortgage products
in the form of subprime loans,” and that the industry as a whole
pushed “subprime mortgages” on those who do not have the ability
to pay. (Am. Compl. ¶ 57.) However, generalizations or statistics
about the impact that the mortgage crisis had on African-American
homeowners are not sufficient to state a claim for a conspiracy
motivated by racial animus under § 1985. The Amended Complaint is
without facts to substantiate a claim that racial animus
motivated any of the Defendants’ allegedly wrongful conduct.
Therefore, Count Fifteen is dismissed in its entirety.

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15. For these reasons, to the extent that Plaintiff brings
Count Fourteen under § 1985, Count Fourteen must be dismissed.
Plaintiff fails to plead a cognizable violation of her rights
motivated by racial or class-based discriminatory animus.6
Therefore, Counts Fourteen and Fifteen are dismissed in their
entirety for failing to state a claim upon which relief may be
granted.
16. Count Seven and Eighteen appear to be cumulative in that
they both allege “Gross Negligence” against all Defendants.
Plaintiff brings Count Seven “Pursuant to Common Law” and Count
Eighteen references “N.J.S.A. 62A-27c, N.J.S.A. 2A:15-5.10.” The
Court is not aware of any Title 62A in the New Jersey code, and
N.J. Stat. Ann. § 2A:15-5.10 is a section defining terms within
Article 1B, which concerns punitive damages. The Court construes
these counts to allege identical torts of common-law negligence
against Defendants. Therefore, the Court will dismiss Count

6

The tort of malicious prosecution requires the plaintiff
to show “(1) that defendants instituted the criminal action
against her; (2) that defendants acted with malice; (3) that
there was an absence of probable cause for the criminal action;
and (4) that the criminal action terminated in her favor.”
Afiriyie v. Bank of Am., N.A., No. L-1987-08, 2013 WL 451895, at
*16 (N.J. Super. Ct. App. Div. Feb. 7, 2013). Plaintiff does not
plead facts to support such a claim. Additionally, although
Plaintiff invokes the “seizure” language of the Fourth Amendment,
or implies some kind of “taking” protected by the Fifth
Amendment, or equivalents under state law, she does not plead a
seizure or taking by a state actor. Therefore, to the extent
Count Fourteen brings claims for malicious prosecution or
constitutional deprivations of property, those claims are
dismissed.
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Eighteen as redundant of Count Seven.
17. Count Nineteen, alleging a violation of the New Jersey
Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1, et seq. (“NJCFA”),
states that “[t]he loan origination conduct of the Banks, as
described above, constitutes unfair or deceptive practices in
violation of the consumer protection laws of New Jersey.” (Am.
Compl. ¶ 231.) Plaintiff asserts Count Nineteen “Against all
Defendants,” but only brings “Unfair and Deceptive Loan
Origination Practices” (Count Twelve) against Defendants Morrice,
Mortgage Electronic Registration System, Inc. (“MERS”), Bank of
America, N.A., “Deutsche,” and “Goldman.” (See id. ¶¶ 219-220.)
The Amended Complaint does not state a basis for holding other
Defendants liable for fraud related to loan origination under the
NJCFA. Therefore, Count Nineteen must be dismissed against all
other Defendants.
18. The Court construes Plaintiff’s federal RICO claims to
be brought under 18 U.S.C. § 1962(c)7 and 18 U.S.C. § 1962(d).8
To plead a violation of § 1962(c), a plaintiff must allege: (1)

7

“It shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity
of collection of an unlawful debt.”
8

“It shall be unlawful for any person to conspire to
violate any of the provisions of subsection (a), (b), or (c) of
this section.”
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the existence of an enterprise (2) affecting interstate commerce,
(3) that the defendants were employed by, or associated with, the
enterprise, and (4) that the defendants “participated in the
conduct of the affairs of the enterprise” (5) through “a pattern
of racketeering activity consisting of at least two acts of
racketeering activity.” Rose v. Bartle, 871 F.2d 331, 358 (3d
Cir. 1989). The plaintiff must also allege an injury under 18
U.S.C. § 1964(c). To state a claim for conspiracy under §
1962(d), “a plaintiff must allege (1) agreement to commit the
predicate acts of fraud, and (2) knowledge that those acts were a
part of a pattern of racketeering activity conducted in such a
way as to violate section 1962(a), (b) or (c).” Rose, 871 F.2d at
366. When a civil RICO claim is based on fraud, the RICO claim
must be pleaded with particularity, according to Fed. R. Civ. P.
9(b). Rule 9(b) requires a plaintiff claiming fraud to allege:
“(1) A specific false representation of material facts; (2)
knowledge by the person who made it of its falsity; (3) ignorance
of its falsity by the person to whom it was made; (4) the
intention that it should be acted upon; and (5) the plaintiff
acted upon it to his [or her] damage.” In re Suprema Specialties,
Inc. Sec. Litig., 438 F.3d 256, 270 (3d Cir. 2006). Plaintiffs
must describe “with particularity the ‘circumstances’ of the
alleged fraud in order to place the defendants on notice of the
precise misconduct with which they are charged and to safeguard

15

defendants against spurious charges of immoral and fraudulent
behavior.” Seville Indus. Mach. Corp. v. Southmost Mach. Corp.,
742 F.2d 786, 791 (3d Cir. 1984).
19. In sum, fraud and civil RICO claims are subject to
demanding pleading standards. The fraud and RICO claims as
presently pleaded are insufficient because one cannot tell what
Plaintiff alleges each Defendant did to cause her injury. A
plaintiff does not plead a viable claim by lining up all of the
financial institutions that had nothing to do with her
foreclosure and blaming them as a group. The pleadings related to
fraud must place each defendant on notice of the precise
misconduct with which he or she is charged and how that
defendant’s conduct harmed the plaintiff and must contain enough
factual content to make such a claim plausible on its face. Iqbal
v. Ashcroft, 556 U.S. 662, 678 (2009).
20. Plaintiff still has not complied with Rules 8(a) and
9(b) of the Federal Rules of Civil Procedure. Plaintiff’s Amended
Complaint and accompanying exhibits are hundreds, if not more
than one thousand pages long, and the method by which Plaintiff
incorporates the entirety of the Amended Complaint by reference
into each individual count makes it difficult for the Court, and
for potential Defendants, to identify exactly what wrongdoing has
been alleged against each Defendant in a manner causing
Plaintiff’s financial harm. Plaintiff has not provided a “short

16

and plain statement” of the claim showing the pleader is entitled
to relief. Fed. R. Civ. P. 8(a)(2). Furthermore, it is not clear
to the Court what specific conduct of each Defendant grounds
liability for fraud or conspiracy. References to other
investigations and lawsuits pertaining to the foreclosure
industry generally do not constitute clear averments of fact that
the Court can make sense of or order Defendants to answer. See
Giles, 2012 WL 450629, at *18 (granting leave to re-file an
amended complaint alleging civil RICO and fraud claims related to
a foreclosure, stating that a confusing, 90-page complaint did
not meet the requirements of Rules 8(a) and 9(b)); see also Fed.
R. Civ. P. 9(b) (requiring plaintiffs to “state with
particularity the circumstances constituting fraud”). Therefore,
the remaining claims are dismissed without prejudice, and the
Court will offer to Plaintiff a final opportunity to file a
Second Amended Complaint consistent with this Opinion.
21. Any Second Amended Complaint must be consistent with
this Opinion and conform with Fed. R. Civ. P. 8(a) and 9(b). Any
amended complaint must include particular allegations of conduct
constituting fraud for each named Defendant, as required by Fed.
R. Civ. P. 9(b) and discussed above. Extraneous matter about the
foreclosure crisis or mortgage industry generally should not be
included in, or attached to, the Second Amended Complaint. As in
every complaint filed in federal court, Plaintiff is constrained

17

to bring suit only against those parties against whom she is able
to make a plausible claim that the particular party has caused
the harm she has suffered; shotgun allegations against numerous
parties that happen to be involved in the same business or
industry are not permitted under Fed. R. Civ. P. 8(a) and 9(b).
Any claims that have been dismissed with prejudice in this
Opinion and Order, or the Memorandum Opinion and Order of January
28, 2013 [Docket Items 6 & 7], must not appear in the Second
Amended Complaint. Failure to amend the pleadings accordingly
will result in dismissal of claims with prejudice. Plaintiff will
have thirty days from the entry of this Opinion and Order to file
a proposed Second Amended Complaint.
22. The Court does not suggest, by declining to dismiss with
prejudice certain claims in this § 1915 screening, that these
remaining claims affirmatively state a claim for relief. Nor does
the Court suggest that the remaining claims cannot be subject to
a motion to dismiss for failure to state a claim by one or more
Defendants. The Court merely declines at this time to dismiss the
remaining claims sua sponte in this § 1915 screening.
23. An accompanying Order will be entered.

April 23, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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