Linares et al v. U.S. Bank National Association, et al
Filing
22
MEMORANDUM AND ORDER granting 2 Motion to Dismiss subject to affording Plaintiffs leave to amend their Complaint, within thirty days of this order; adopting 14 Report and Recommendations; finding as moot 17 Motion for Extension of Time; finding as moot 19 Motion for Extension of Time to File Objection to 14 REPORT AND RECOMMENDATIONS. So Ordered by Chief Judge William E. Smith on 8/1/2017. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
GONZALO LINARES and
)
BLANCA LINARES,
)
)
Plaintiffs,
)
)
v.
)
C.A. No. 16-481 S
)
U.S. BANK NATIONAL ASSOCIATION,
)
et al.,
)
)
Defendants.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
In
the
aftermath
of
a
foreclosure
proceeding
Gonzalo
Linares and Blanca Linares (“Plaintiffs”) brought suit against
their mortgage provider, owner, and servicer (“Defendants”). The
allegations
in
the
Complaint
include:
Count
I
(Breach
of
Contract), Count II (Violation of the Covenant of Good Faith and
Fair Dealing), Count III (Violation of the Truth in Lending
Act),
and
Count
IV
(Violation
of
the
Fair
Debt
Collection
Practices Act). (See Amended Compl., ECF No. 1-2.) Defendants
moved to dismiss this case under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief may be
granted.
(See
Mot.
to
Dismiss,
ECF
No.
2.)
That
matter
was
referred to Magistrate Judge Lincoln D. Almond for report and
recommendation.
1
As
was
Complaint
noted
in
this
by
Magistrate
case
is
Judge
Almond,
“substantively
the
Amended
identical”
to
the
Amended Complaint in Pemental v. The Bank of New York Mellon, et
al., C.A. No. 16-483. (Report and Recommendation 2, ECF No. 14.)
The
Amended
removed
to
Complaints
federal
in
court
Pemental
on
the
and
same
this
day
case
and
were
also
the
same
by
attorneys. (Id.) Given that the issues presented in both cases
are “substantively identical,” Magistrate Judge Almond relied
primarily on the analysis of Magistrate Judge Sullivan in her
Report and Recommendation in Pemental.
In that case, Magistrate Judge Sullivan found that all four
claims failed under the Rule 12(b)(6) standard, but recommended
that
the
plaintiff
be
provided
thirty
days
to
correct
the
deficiencies in the Amended Complaint. (See C.A. No. 16-483,
Report and Recommendation, ECF No. 14.) Magistrate Judge Almond,
“[a]fter
closely
reviewing
Judge
Sullivan’s
Report
and
Recommendation in Pemental in the context of the pleadings and
arguments set forth in this case,” found “her reasoning to be
thorough,
legally
supported
and
persuasive,
and
equally
applicable in this case.” (Report and Recommendation 4, ECF No.
14.)
Magistrate
recommended
Judge
disposition
Almond
and
therefore
supporting
entirety.” (Id.)
2
“adopt[ed]
rationale
in
her
their
After
an
independent
review
of
this
matter,
the
Court
agrees with Magistrate Judge Almond’s recommendation. The Court
has
already
adopted
Magistrate
Judge
Sullivan’s
Report
and
Recommendation in Pemental. Based on the facts alleged in the
Amended Complaint in this case, the Court finds that the same
deficiencies exist as were evident in Pemental. The Report and
Recommendation (ECF No. 14) is therefore ACCEPTED. Plaintiffs
are provided thirty days from the date of this Order to file an
amended complaint that corrects the deficiencies discussed in
Magistrate
Judge
Sullivan’s
Report
and
Recommendation
in
Pemental and adopted in Magistrate Judge Almond’s Report and
Recommendation in this case.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: August 1, 2017
3
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