Traber et al v. Mortgage Electronic Registration Systems, Inc. et al

Filing 37

ROSEBORO ORDER denying as moot 10 , 12 and 24 Motions to Dismiss; Pltfs' shall have until 10/13/11, to file a written supplemental response to Defts' 26 & 27 Motions to Dismiss Amended Complaint; granting 33 Defts' Motion to Stay discovery and all pretrial deadlines pending a ruling on the Motions to Dismiss the Amended Complaint. Signed by Magistrate Judge Dennis Howell on 10/3/11. (Pro se litigant served by US Mail.)(nll)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv126
LAWRENCE J. TRABER and
ELGE L. TRABER,

)
)
)
Plaintiffs,
)
)
v.
)
)
MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEM, INC., et al. )
)
Defendants.
)
_______________________________
)

ROSEBORO
ORDER

Pending before the Court are a number of motions filed by both parties to
this action. Plaintiffs brought this action against a number of Defendants asserting
a claim for a declaration that the mortgage on their home has become unsecured
because the mortgage was bifurcated. Defendants then moved to dismiss the
Complaint. Subsequently, Plaintiffs filed an Amended Complaint. Defendants
then moved to dismiss the Amended Complaint. In addition, Defendants request
that the Court stay discovery and pretrial deadlines in this case pending a ruling on
the Motions to Dismiss the Amended Complaint.
I.

The Motions to Dismiss the Original Complaint

The filing of an amended complaint supercedes the original complaint and
renders it void of any legal function in the case. Young v. City of Mount Ranier,
238 F.3d 567, 572 (4th Cir. 2001). Accordingly, the Court DENIES as moot
Defendants’ Motions to Dismiss [# 10, # 12 & # 24].

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II.

The Motions to Dismiss the Amended Complaint

Defendant iMortgage Services [# 27] and Defendants Mortgage Electronic
Registration Systems, Inc. (“MERS”), Bank of America, N.A., successor by
merger to BAC Home Loans Servicing, LP (“BACHLS”), and Federal National
Mortgage Association (“FNMA”) [# 26] also moved to dismiss the Amended
Complaint. Because Plaintiffs are proceeding pro se, the Court will advise
Plaintiffs of their obligation to respond and the time for doing so.
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Plaintiffs, who are proceeding pro se, are cautioned that Defendants have filed two
Motions to Dismiss contending that this court lacks subject matter jurisdiction over
the Complaint and that they have failed to state a claim.
Plaintiffs are advised that Rule 12(b)(1) provides for dismissal where the
Court lacks jurisdiction over the subject matter of the lawsuit. Lack of subjectmatter jurisdiction may be raised at any time either by a litigant or the court.
Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884). The ability of the
court to independently address subject-matter jurisdiction is important to finality
inasmuch as a litigant, even one who remains silent on the issue of jurisdiction,
may wait until they receive an adverse judgment from a district court and raise the
issue of subject-matter jurisdiction for the first time on appeal, thereby voiding the
judgment. Capron v. Van Noorden, 2 Cranch 126, 127, 2 L.Ed. 229 (1804). The
Federal Rules of Civil Procedure anticipate this issue and provide that “[w]henever
it appears by suggestion of the parties or otherwise that the court lacks jurisdiction

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of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3).
When a court considers its subject-matter jurisdiction, the burden of proof is on the
plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In Richmond,
Fredricksburg & Potomac R.R. Co. v. United States, 945 F.2d 765 (4th Cir. 1991)
(Ervin, C.J.), the Court of Appeals for the Fourth Circuit held, as follows
In determining whether jurisdiction exists, the district court is to regard
the pleadings' allegations as mere evidence on the issue, and may
consider evidence outside the pleadings without converting the
proceeding to one for summary judgment. Id.; Trentacosta v. Frontier
Pacific Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir.1987). The district
court should apply the standard applicable to a motion for summary
judgment, under which the nonmoving party must set forth specific facts
beyond the pleadings to show that a genuine issue of material fact exists.
Trentacosta, supra, 813 F.2d at 1559 (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323-24, 106 S. Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)).
The moving party should prevail only if the material jurisdictional facts
are not in dispute and the moving party is entitled to prevail as a matter
of law. Trentacosta, supra, 813 F.2d at 1558. A district court order
dismissing a case on the grounds that the undisputed facts establish a
lack of subject matter jurisdiction is a legal determination subject to de
novo appellate review. Revene v. Charles County Comm'rs, 882 F.2d
870, 872 (4th Cir.1989); Shultz v. Dept. of the Army, 886 F.2d 1157,
1159 (9th Cir.1989).
Id., at 768-69. Plaintiffs are advised that it is their burden to show the court how it
has jurisdiction over the subject matter of this action.
Defendants also move to dismiss under Rule 12(b)(6) for failure to state a
claim. Rule 12(b)(6), Federal Rules of Civil Procedure, provides for dismissal
where a party has failed to state a cause of action as a matter of law. This language
means that in responding to the motion to dismiss, Plaintiffs must show that they
have made sufficient allegations to support a cause of action against Defendants
that is recognized by law. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544
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(2007), the Court held that to survive a Rule 12(b)(6) motion to dismiss, a plaintiff
must allege facts in his complaint that “raise a right to relief above the speculative
level.” Id. at 555.
[A] plaintiff’s obligation to provide the “grounds” of his “entitle[ment]
to relief” requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do . . . .
Id. (citation omitted). Further, a complaint will not survive Rule 12(b)(6) review
where it contains “naked assertion[s] devoid of further factual enhancement.” Id. at
557. Instead, a plaintiff must now plead sufficient facts to state a claim for relief
that is “plausible on its face.” Id. at 570.
The Court again visited the Rule 12(b)(6) pleading standard in Ashcroft v.
Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (May 18, 2009). In Ashcroft, the Court held
that Rule 8 “demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” Id. at 1949. The Court explained
that, “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.” Id.
(internal quotation omitted). What is plausible is defined by the Court:
[a] claim has facial plausibility when the plaintiff pleads sufficient
factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.
Id. This “plausibility standard” requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id. Thus, a complaint falls short of the
plausibility standard where plaintiff “pleads facts that are ‘merely consistent with’
a defendant’s liability . . . .” Id. While the court accepts plausible factual

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allegations made in the Complaint as true and considers those facts in the light
most favorable to plaintiff in ruling on a motion to dismiss, a court "need not
accept as true unwarranted inferences, unreasonable conclusions, or arguments."
Eastern Shore Mkt.'s Inc. v. J.D. Assoc.'s, LLP, 213 F. 3d 175, 180 (4th Cir. 2000).

Finally, Plaintiffs are advised that the method for responding requires their
filing a written “response” to Defendants’ motions within the time allowed by this
Order. A copy of such response must be sent to counsel for all other parties, and
Plaintiffs must certify that they have made such service in a “certificate of service”
indicating the manner in which such service was made. Although Plaintiffs have
already filed a response to these motions, Plaintiffs may file a written supplemental
response to Defendants’ Motions to Dismiss [# 26 & # 27] consistent with this
Order by October 13, 2011.
III.

The Motion to Stay

Defendants move to stay these proceedings pending a ruling on the pending
Motions to Dismiss the Amended Complaint. For good cause shown, the Court
GRANTS the motion [# 33]. The Court STAYS discovery and all pretrial
deadlines in this case pending a ruling on the Motions to Dismiss the Amended
Complaint.
IV.

Conclusion

The Court DENIES as moot Defendants’ Motions to Dismiss [# 10, # 12 &
# 24]. Plaintiffs shall have until October 13, 2011, to file a written supplemental

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response to Defendants’ Motions to Dismiss the Amended Complaint [# 26 & # 27].
Finally, the Court STAYS discovery and all pretrial deadlines in this case pending a
ruling on the Motions to Dismiss the Amended Complaint [# 26 & # 27].

Signed: October 3, 2011

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