John Michael LeBlanc v. Bank of America, N.A. et al

Filing 19

ORDER granting 18 Motion for Judgment on the Pleadings. Signed by Chief Judge Jon Phipps McCalla on 5/13/13. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JOHN MICHAEL LEBLANC,
Plaintiff,
v.
BANK OF AMERICA, N.A. and
BAC HOME LOANS SERVICING, LP
(f/k/a COUNTRYWIDE HOME LOANS
SERVICING, LP, CORP.);
RUBIN LUBLIN TN, PLLC,
Defendants.

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No. 2:13-cv-02001-JPM-tmp

ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS

Before the Court is Defendant Rubin Lublin TN, PLLC’s
(“Defendant” or “Rubin Lublin”) Motion for Judgment on the
Pleadings, filed March 25, 2013.
not file a response.

(ECF No. 18.)

Plaintiff did

For the reasons below, Defendant’s Motion

is GRANTED.
I.

BACKGROUND
Plaintiff John Michael LeBlanc (“Plaintiff” or “LeBlanc”)

filed a Petition for Declaratory and Injunctive Relief and
Complaint for Damages in the Chancery Court of Shelby County,
Tennessee, for the Thirtieth Judicial District at Memphis on
November 26, 2012.

(ECF No. 1-2.)

The Petition and Complaint

named Bank of America Corporation, BAC Home Loans Servicing, LP,
and Rubin Lublin as Defendants.

(Id. ¶¶ 5-7.)

LeBlanc made

numerous state-law claims, including violation of the Tennessee

Consumer Protection Act (“TCPA”), breach of contract, promissory
estoppel, and negligent misrepresentation.

(See id. ¶¶ 37-55.)

LeBlanc also made one claim arising under federal law, violation
of the Truth-in-Lending Act.

(See id. ¶¶ 35-36.)

LeBlanc

sought a temporary restraining order and temporary injunction
against all Defendants “from proceeding with a scheduled
foreclosure sale of the property located at 3786 Old Brownsville
road in Memphis, Shelby County, Tennessee.”

(Id. at 9, ¶¶ 2-3.)

LeBlanc also sought a declaration stating that Defendants’ acts
violated the TCPA, damages under the TCPA, and judgments against
Defendants for the remaining claims.

(Id. at 9-10, ¶¶ 4-9.)

On December 26, 2012, Rubin Lublin filed a Verified Answer
to Plaintiff’s Complaint, asserting a number of defenses.
No. 1-2 at PageID 25-39.)

(ECF

Notably, Rubin Lublin alleged that it

should be dismissed from the action as it is “not a necessary
party” and believes it was only named in the action “solely in
his capacity as trustee under the Plaintiff’s Deed of Trust.”
(Id. at PageID 26.)

This belief was “based on the fact that

there are no allegations in the Complaint that relate to the
conduct of Rubin Lublin and Rubin Lublin is not mentioned
anywhere in the Complaint outside of being identified as a party
to this action.”

(Id.)

Defendant Bank of America, N.A., as “successor by merger to
BAC Home Loans Servicing, LP,” properly removed the action to
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this Court on January 2, 2013.

(See ECF No. 1.)

Rubin Lublin

filed 3 notices of appearance and its corporate disclosure
statement on March 15, 2013.
16; ECF No. 17.)

(ECF No. 14; ECF No. 15; ECF No.

On March 25, 2013, Rubin Lublin filed the

instant Motion for Judgment on the Pleadings pursuant to Federal
Rules of Civil Procedure (“Rule”) 12(c) and 12(b)(6).
18 at 1.)

(ECF No.

LeBlanc did not file a response, and the time within

which to do so has expired.

See LR 12.1(a).

Rubin Lublin argues that a judgment on the pleadings should
be entered finding that “there are no issues of material fact
and that the Plaintiff has failed to state a claim in the
Complaint upon which relief may be granted.”
II.

(ECF No. 18 at 1.)

STANDARD OF REVIEW
Rubin Lublin filed the instant motion under Rules 12(c) and

12(b)(6).

(ECF No. 18 at 1.)

Rubin Lublin states in the memorandum in support of the
instant Motion that its Rule 12(c) Motion is “asserting that the
Complaint fails to state a claim upon which relief can be
granted, and thus this Court should utilize the standard
employed when deciding a 12(b)(6) motion.”
The Court agrees.

(ECF No. 18-1 at 3.)

“Where the 12(b)(6) defense is raised under a

Rule 12(c) motion for judgment on the pleadings, courts apply
the standard for reviewing a 12(b)(6) motion.”

Mull v.

Available Mortg. Funding, LLC, 2:11-cv-2338-STA-dkv, 2012 WL
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1022966, at *1 (W.D. Tenn. Mar. 26, 2012) (quoting Morgan v.
Church’s Fried Chicken, 829 F.2d 10, 11 (6th Cir. 1987)).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a
defendant may move to dismiss the plaintiff’s complaint for
“failure to state a claim upon which relief can be granted.”
Under Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), a “civil complaint only
survives a motion to dismiss if it ‘contain[s] sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.’”

Courie v. Alcoa Wheel & Forged

Prods., 577 F.3d 625, 629 (6th Cir. 2009) (alteration in
original) (quoting Iqbal, 556 U.S. at 678).
“A court may not grant a Rule 12(b)(6) motion based on
disbelief of a complaint’s factual allegations.”

Bovee v.

Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001)

The

court must instead “construe the complaint in the light most
favorable to the plaintiff, accept all its allegations as true,
and draw all reasonable inferences in favor of the plaintiff.”
In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896, 903
(6th Cir. 2009) (internal quotation marks omitted).

The court,

however, “need not accept as true legal conclusions or
unwarranted factual inferences, and conclusory allegations or
legal conclusions masquerading as factual allegations will not
suffice.”

Id. (alteration omitted) (citation omitted) (internal
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quotation marks omitted).

“A claim is plausible on its face if

the ‘plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.’” Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting Iqbal,
556 U.S. at 678).
The court may not dismiss a “plaintiff’s complaint solely
because the plaintiff fails to respond to a Rule 12(b)(6) motion
to dismiss.”

Allstate Ins. Co., 201 F. App’x at 315 (Gwin, J.,

dissenting) (citing Carver v. Bunch, 946 F.2d 451, 452 (6th Cir.
1991)).

“[R]egardless [of whether] an adverse party fails to

respond,” the court “is required at a minimum, to examine the
movant’s motion [to dismiss] to ensure that he has discharged”
his initial burden.

Carver, 946 F.2d at 454-55.

Rubin Lublin has also attached documents regarding its role
as trustee in the instant case to its Motion.

Under Rule 12(d),

“[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside
the pleadings are presented to and not excluded by the court,
the motion must be treated as one for summary judgment under
Rule 56.”

In the instant case, the Court will consider these

attachments without converting the instant Motion to a Motion
for Summary Judgment as “exhibits attached [to the complaint],
public records, items appearing in the record of the case and
exhibits attached to defendant’s motion to dismiss” can be
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considered “so long as they are referred to in the complaint and
are central to the claims contained therein.”

Rondigo, L.L.C.

v. Twp. of Richmond, 641 F.3d 673, 681 (6th Cir. 2011)
(alteration in original) (internal quotation marks omitted),
reh’g and reh’g en banc denied, (6th Cir. July 28, 2011).

In

the instant case, Plaintiff’s Complaint names Rubin Lublin as a
defendant, describing it is a “professional limited liability
corporation duly licensed in the State of Tennessee.”
1-2 at PageID 10, ¶ 7.)

(ECF No.

Rubin Lublin’s memorandum in support of

its Motion to Dismiss contends that Rubin Lublin is a substitute
trustee under the Deed of Trust (ECF No. 18-2) and Appointment
of Substitute Trustee (ECF No. 18-3) associated with Plaintiff’s
home loan and promissory note referred to Plaintiff’s Complaint.
(ECF No. 18-1 at 2.)

As a result, the Court finds Defendant’s

attachments relate to Plaintiff’s Complaint, and Rubin Lublin’s
status as a trustee is central to its Motion for Judgment on the
Pleadings.
III. ANALYSIS
Defendant Rubin Lublin seeks dismissal of all claims
asserted against it.

Rubin Lublin argues that Plaintiff’s

Complaint “is insufficient to state a claim against Rubin
Lublin” because “[e]ach and every factual allegation relates to
alleged actions undertaken by Bank of America, N.A., and not
Rubin Lublin.”

(ECF No. 18-1 at 5.)
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Taking the factual allegations in the light most favorable
to the Plaintiff, the Court finds that Plaintiff has failed to
state claim on which relief can be granted against Rubin Lublin.
The Complaint contains no factual allegations related to the
actions of Rubin Lublin.
34.)

(ECF No. 1-2 at PageID 11-14, ¶¶ 8-

“[W]here the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the
complaint has alleged — but it has not ‘show[n]’ — ‘that the
Iqbal, 556 U.S. at 679 (second

pleader is entitled to relief.’”

alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)); see
also Collins v. Mortg. Elec. Registration Sys., Inc., No. 3:11–
cv–00264, 2012 WL 859590 (M.D. Tenn. Feb. 14, 2012), adopted,
2012 WL 848041 (M.D. Tenn. Mar. 12, 2012).

As a result,

Plaintiff does not “plead[] factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Ctr. for Bio-Ethical

Reform, Inc., 648 F.3d at 369 (internal quotation marks
omitted).

Accordingly, all claims by Plaintiff against Defendant

Rubin Lublin are hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 13th day of May, 2013.
/s/ Jon P. McCalla
CHIEF U.S. DISTRICT JUDGE

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