SAPP v. SECURITY ATLANTA MORTGAGE CO., INC., et al

Filing 20

MEMORANDUM OPINION AND RECOMMENDATION - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 04/16/2012. IT IS THEREFORE RECOMMENDED that the Motion to Dismiss of Defendants Mortgage Electronic Registration Systems, Inc., Nationwide Trustee Servic es, Inc., and Johnson & Freedman, LLC (Docket Entry 10 ) and the Amended Motion to Dismiss of Defendants Mortgage Electronic Registration Systems, Inc., Nationwide Trustee Services, Inc., and Johnson & Freedman, LLC (Docket Entry 17 ) be granted and that this action be dismissed. IT IS FURTHER RECOMMENDED that the Motion to Correct Docket Entries 13 , 14 and 15 (Docket Entry 16 ) be denied as moot.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LAURA-HELEN SAPP,

)
)
Plaintiff,
)
)
v.
)
)
SECURITY ATLANTA MORTGAGE CO.,
)
INC., MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEMS, INC.,
)
NATIONWIDE TRUSTEE SERVICES, INC., )
and JOHNSON & FREEDMAN, LLC,
)
)
Defendants.
)

1:10CV199

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate Judge for a recommended ruling on the Motion to Dismiss
of Defendants Mortgage Electronic Registration Systems, Inc.,
Nationwide Trustee Services, Inc., and Johnson & Freedman, LLC
(Docket Entry 10); the Amended Motion to Dismiss of Defendants
Mortgage Electronic Registration Systems, Inc., Nationwide Trustee
Services, Inc., and Johnson & Freedman, LLC (Docket Entry 17); and
the Motion to Correct Docket Entries 13, 14 and 15 (Docket Entry
16) filed by the same.

For the reasons that follow, the Court

should grant Defendants’ Motions to Dismiss and deny the Motion to
Correct Docket Entries as moot.

Background
Plaintiff, proceeding pro se, filed her Complaint, entitled
Petition in the Nature of a Motion for Claim in Equity for the
Beneficial Interest for the Trust, in Guilford County Superior
Court, naming Security Atlantic Mortgage Co., Inc. (incorrectly
referred

to

as

Security

Atlanta

Mortgage

Co.,

Inc.

in

the

Complaint) (“Security Atlantic”), Mortgage Electronic Registration
Systems, Inc. (“MERS”), Nationwide Trustee Services, Inc. (“NTS”)
and

Johnson

&

“Respondents”.

Freedman,

LLC

(“Johnson

(See Docket Entry 4.)1

&

Freedman”)

as

MERS, NTS and Johnson &

Freedman timely filed a Notice of Removal of Defendants, removing
the instant action to this Court on the basis of diversity of
citizenship. (See Docket Entry 1, ¶¶ 4-7; Docket Entry 2, ¶¶ 4-7.)
MERS, NTS and Johnson & Freedman subsequently filed a Motion
to

Dismiss

(Docket

Entry

10),

contending

that

“Plaintiff’s

[Complaint]: (1) is untimely under North Carolina law for that
portion

of

the

[Complaint]

that

appears

to

attempt

to

seek

equitable relief; and, (2) taken as a whole, is both incoherent and
incomprehensible, and cannot possibly state a legally sufficient

Although Plaintiff’s Complaint begins, “COMES NOW, Laura
Helen-Sapp, Petitionary/Beneficiary by and through her Authorized
Representative . . .” (Docket Entry 4 at 1 (emphasis added)),
Plaintiff appears to be proceeding without counsel (see Docket
Entry 4 at 1 (noting Plaintiff is acting without legal education),
4 (showing Complaint signed solely by Plaintiff)).
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claim against any of the named Defendants.”

(Docket Entry 11 at

1.)
Plaintiff then filed Affidavits of Service as to Defendants
MERS, NTS and Johnson & Freedman (Docket Entries 13, 14, 15),
prompting those Defendants to file an Amended Motion to Dismiss
(Docket Entry 17), incorporating the arguments in their previously
filed Motion, but also contending that Plaintiff’s service was
ineffective (see Docket Entry 18 at 2-4).

Said Defendants also

filed a Motion to Correct Plaintiff’s Affidavits of Service,
contending that despite Plaintiff’s statement that service was
effectuated on December 12, 2011, the United States Postal Service
shows an actual delivery date of December 19, 2011.
Entry

16,

¶¶

1-4.)

Accordingly,

Defendants

(See Docket
request

that

Plaintiff’s Affidavits of Service be corrected to reflect the
appropriate date, and that the due date for the Answer be adjusted
accordingly.

(See id. ¶ 4.)

After Defendants filed their Motion to Dismiss, and again
after Defendants filed their Amended Motion to Dismiss, the Clerk
sent Plaintiff a letter explaining that Plaintiff had “the right to
file a 20-page response in opposition to [the instant motions to
dismiss] . . . .”

(Docket Entries 12 at 1; 19 at 1.)

Those

letters specifically cautioned Plaintiff that her “failure to
respond or, if appropriate, to file affidavits or evidence in
rebuttal within the allowed time may cause the court to conclude

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that the defendant’s contentions are undisputed. . . .

Therefore,

unless [she] file[s] a response in opposition to the defendant[s’]
motion, it is likely [her] case will be dismissed or summary
judgment granted in favor of the defendant[s].” (Docket Entries 12
at 1; 19 at 1.)

Despite these warnings, Plaintiff has made no

additional filings with the Court, whether in the form of a
Response or otherwise. (See Docket Entries dated Jan. 24, 2012, to
present.)
Motion to Dismiss
The instant action warrants dismissal due both to Plaintiff’s
failure to respond to Defendants’ Motions to Dismiss and pursuant
to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which
relief can be granted.
Under this Court’s Local Rules, failure to respond to a motion
generally warrants granting the relief requested.
LR7.3(k).

See M.D.N.C.

Moreover, the Clerk specifically warned Plaintiff that

her failure to respond to the instant Motion would likely lead to
dismissal.

(See Docket Entries 12 at 1; 19 at 1.)

Plaintiff has

offered no explanation to the Court for said failure. Accordingly,
the Court should follow its general rule and dismiss Plaintiff’s
action.
In addition, Defendants are entitled to dismissal because
Plaintiff’s Complaint fails to state a claim upon which relief can
be granted.

A complaint fails to state a claim if it does not

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“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 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

“Where a complaint pleads

facts that are ‘merely consistent with’ a defendant’s liability, it
‘stops short of the line between possibility and plausibility of
“entitlement to relief.”’” Id. (quoting Twombly, 550 U.S. at 557).
This standard “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”

Id.

In other words, “the tenet

that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.

Threadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Id.2

Moreover, although the Supreme Court has reiterated that “[a]
document filed pro se is to be liberally construed and a pro se
complaint,

however

inartfully

pleaded,

must

be

held

to

less

stringent standards than formal pleadings drafted by lawyers,”
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L.Ed.2d
1081 (2007) (internal citations and quotation marks omitted), the
United States Court of Appeals for the Fourth Circuit has “not read
Erickson to undermine Twombly’s requirement that a pleading contain

“[D]etermining whether a complaint states on its face a
plausible claim for relief and therefore can survive a Rule
12(b)(6) motion . . . requires the reviewing court to draw on its
judicial experience and common sense.” Francis v. Giacomelli, 588
F.3d 186, 193 (4th Cir. 2009).
2

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more than labels and conclusions,” Giarratano v. Johnson, 521 F.3d
298, 304 n.5 (4th Cir. 2008) (internal quotation marks omitted)
(applying Twombly standard in dismissing pro se complaint); accord
Atherton v. District of Columbia Off. of Mayor, 567 F.3d 672,
681–82 (D.C. Cir. 2009) (“A pro se complaint . . . ‘must be held to
less stringent standards than formal pleadings drafted by lawyers.’
But even a pro se complainant must plead ‘factual matter’ that
permits the court to infer ‘more than the mere possibility of
misconduct.’” (quoting Erickson, 551 U.S. at 94, and Iqbal, 556
U.S. 679, respectively)).
Plaintiff’s Complaint contains neither factual matter nor
labels and conclusions that would allow the Court to construe a
viable claim.

(See Docket Entry 4.)

Even the basic facts

underlying Plaintiff’s Complaint are unclear.
Plaintiff

appears

references

to

admiralty

complain
and

of

a

maritime

(See id.)

foreclosure
law

in

Although

action,

addition

to

constitutions of the United States and North Carolina.
example, Plaintiff’s Complaint begins:
COMES NOW, Laura-Helen Sapp, Petitioner/Beneficiary by
and through her Authorized Representative, comes in
peace, not as a combatant, and not as an enemy of any
State and/or UNITED STATES with ill intent, “Restricted
Appearance” Rule E(8), Supplemental Rules for certain
Admiralty and Maritime claims before this court seeking
a remedy in Admiralty as provided by “The Saving to the
Suitors Clause” at USC 28-1333(1), and Constitution of
North Carolina State and united states of America “As
lawfully Amended” under contract and trust laws.
(Id. at 1.)

And it concludes:
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she
the
For

Demand that Respondents produce their proof of claim with
inspection the "Original Mortgage Note" with wet ink
signatures, along with the Title Page that shows whether
or note [sic] the mortgage has been satisfied.
We
believe that SECURITY ATLANTA MORTGAGE CO. INC. has sold
the original note and failed to give credit to the
account.
This note was created on my credit, and
signature, and was not an asset of SECURITY ATLANTA
MORTGAGE CO. INC. I believe the Respondents have not
been damaged and have no legal right to a claim. This is
Dishonor in Commerce, Fraud, Theft, Conspiracy, and
Racketeering.
(Id. at 4.)
The body of Plaintiff’s Complaint does little to clarify these
statements, as it is similarly disjointed and lacking in factual
assertions.

(See Docket Entry 4.)

Accordingly, regardless of the

liberal construction Plaintiff’s pro se filing is afforded under
Erickson, Plaintiff’s Complaint fails to state a claim upon which
relief can be granted and should be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6). See, e.g., Bustos v. Chamberlain, C.A. No. 3:091760-HMH-JRM, 2009 WL 2782238, at *2 (D.S.C. Aug. 27, 2009)
(unpublished) (“[T]he requirement of liberal construction does not
allow the court to ignore a clear failure in the pleading to allege
facts which set forth a claim currently cognizable in a federal
district court.” (citation omitted)); Brice v. Jenkins, 489 F.
Supp. 2d 538, 541 (E.D. Va. 2007) (“[T]he liberal construction
applied to a pro se plaintiff’s complaint has its limits.

The

Court is not required to conjure up questions never squarely
presented

in

the

complaint.”

(internal

citations omitted)).
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quotation

marks

and

Conclusion
On the record of this case, no reason exists to depart from
the general rule that Plaintiff’s failure to respond to Defendants’
Motions to Dismiss warrants granting the relief requested.
M.D.N.C. LR7.3(k).

See

Furthermore, because the Court is unable to

decipher a claim from Plaintiff’s Complaint, the instant action
warrants dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure
to state a claim upon which relief can be granted.
IT IS THEREFORE RECOMMENDED that the Motion to Dismiss of
Defendants

Mortgage

Electronic

Registration

Systems,

Inc.,

Nationwide Trustee Services, Inc., and Johnson & Freedman, LLC
(Docket Entry 10) and the Amended Motion to Dismiss of Defendants
Mortgage Electronic Registration Systems, Inc., Nationwide Trustee
Services, Inc., and Johnson & Freedman, LLC (Docket Entry 17) be
granted and that this action be dismissed.
IT IS FURTHER RECOMMENDED that the Motion to Correct Docket
Entries 13, 14 and 15 (Docket Entry 16) be denied as moot.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 16, 2012

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