Sayman et al v. Goddard & Peterson, PLLC et al

Filing 17

ORDER allowing Plaintiffs to submit any additional response to defendant's motion to dismiss within fourteen (14) calendar days, or no later than November 10, 2014. Plaintiffs response must be served on Defendant and must include a certificate of service. Signed by Chief Judge Frank D. Whitney on 10/27/2014. (Pro se litigant served by US Mail.)(jlk)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00426-FDW-DSC
ROBERT W. SAYMAN and MARY B. )
SAYMAN,
)
)
Plaintiffs,
)
)
vs.
)
)
GODDARD & PETERSON, PLLC; )
ASHLEY RICHEY; ANDREW J. )
PETERSON;
and
NATIONSTAR )
MORTGAGE, LLC.;,
)
)
Defendants.
)
)

ORDER

THIS MATTER is before the Court sua sponte concerning the status of this case. On
September 17, 2014, Defendant Nationstar Mortgage filed a Motion to Dismiss (Doc. No. 8)
pursuant to Rule 12(b)(6), which—under this Court’s standing orders—did not stay these
proceedings. On the same day, all Defendants answered the Complaint. On September 22,
2014, the Clerk’s office promptly served the Pro Se Plaintiffs with Notice of the Court’s Pro Se
Settlement Assistance Program (Doc. No. 14). Plaintiffs were required to return the form opting
into the program fourteen days after being served with that Notice. Plaintiffs have not returned
the form opting into the Program, and the time for doing so has expired.
THEREFORE, joinder of the issues has occurred, and the parties shall promptly conduct
an Initial Attorneys’ Conference and file the Report of the conference in accordance with this
Court’s standing orders, the local rules, and the Federal Rules of Civil Procedure.
FURTHER, in accordance with the principles set forth in Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975), the Court advises Plaintiffs, who are proceeding pro se, of the burden they
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carries in responding to Defendant’s motion. They must show in their response to Defendant’s
motion that the Complaint contains sufficient allegations to support a cause of action against that
Defendant. In order to survive a 12(b)(6) motion to dismiss for failure to state a claim upon
which relief can be granted, Plaintiffs’ “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 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Iqbal, 129
S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). While the Court accepts plausible factual
allegations in the complaint as true and considers those facts in the light most favorable to a
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).

A court cannot “accept as true allegations that

contradict matters properly subject to judicial notice or by exhibit.” Venev v. Wyche, 293 F. 3d
726, 730 (4th Cir. 2002) (citations and internal quotations omitted).
Moreover, Defendant also moves to dismiss for failure to satisfy Rule 8(a) pleading
requirements. Rule 8(a) requires, in pertinent part, “(1) a short and plain statement of the
grounds upon which the court’s jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief
the plaintiff seeks.” Fed. R. Civ. P. 8(a). Rule 8 requires “more than an unadorned, the
defendant-unlawfully harmed me accusation,” but instead requires a heightened notice pleading
requirement. Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555). To meet this
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heightened pleading requirement, Plaintiffs’ pleading must have “sufficient factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.
Plaintiffs have submitted a “Motion to Strike the Motion to Dismiss” (Doc. No. 16),
which could be read as an opposition to the Motion to Dismiss. In an abundance of caution and
in light of the notice and standards provided herein, the Court will allow Plaintiffs to submit any
additional response within fourteen (14) calendar days, or no later than November 10, 2014.
Plaintiffs’ response must be served on Defendant and must include a certificate of service
indicating the manner in which Plaintiffs served Defendants. Plaintiffs’ failure to respond may
result in Defendant being granted the relief it seeks.
IT IS SO ORDERED.

Signed: October 27, 2014

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