Alcorn et al v. Executive Home Mortgage, Ltd. et al

Filing 10

MEMORANDUM OPINION re 8 MOTION to Dismiss Plaintiffs' Complaintand Brief in Support filed by JPMorgan Chase Bank, N.A.. Defendants Motion to Dismiss (Dkt. #8) is hereby GRANTED and Plaintiffs claims against Defendant JPMorgan Chase Bank, N.A. are DISMISSED with prejudice. Signed by Judge Amos L. Mazzant, III on 2/17/15. (cm, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

MARLA D. ALCORN and
KEVIN W. ALCORN

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V.
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EXECUTIVE HOME MORTGAGE,
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LTD., DON W. LEDBETTER, PLLC,
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J. P. MORGAN CHASE BANK, N.A.,
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FAY SERVICING, LLC, U.S. NATIONAL §
BANK ASSOC, as Trustee for
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PROF-2013-M4 REMIC TRUST,
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CASE NO. 4:14-CV-715
Judge Mazzant

MEMORANDUM OPINION
Pending before the Court is Defendant JPMC’s Motion to Dismiss Plaintiffs’ Complaint
(Dkt. #8). The Court, having considered the relevant pleadings, finds that Defendant’s motion
should be granted.
BACKGROUND
Plaintiffs commenced this lawsuit against Defendants in state court. On November 11, 2014,
Defendant JPMorgan Chase Bank, N.A. (JPMC), incorrectly sued as “J.P. Morgan Chase Bank,
N.A.,” removed this case to this Court. On November 13, 2014, the Court entered its Order and
Advisory, giving Plaintiffs an opportunity to file an amended complaint. Plaintiffs did not file an
amended pleading. On January 2, 2015, JPMC filed a Motion to Dismiss (Dkt. #8). No response
was filed.
LEGAL STANDARD
Defendant moves for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
which authorizes certain defenses to be presented via pretrial motions. A Rule 12(b)(6) motion to
dismiss argues that, irrespective of jurisdiction, the complaint fails to assert facts that give rise to

legal liability of the defendant. The Federal Rules of Civil Procedure require that each claim in a
complaint include “a short and plain statement . . . showing that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a)(2). The claims must include enough factual allegations “to raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “[t]o
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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570).
Rule 12(b)(6) provides that a party may move for dismissal of an action for failure to state
a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). The Court must accept as true
all well-pleaded facts contained in the plaintiff’s complaint and view them in the light most favorable
to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In deciding a Rule 12(b)(6)
motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “The
Supreme Court recently expounded upon the Twombly standard, explaining that ‘[t]o 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.’” Gonzalez, 577 F.3d at 603 (quoting Iqbal, 556 U.S. at
678). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “It
follows, that ‘where 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 ‘shown’ - ‘that the pleader is
entitled to relief.’” Id.
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency of
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a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and disregard
conclusory allegations for they are “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 664.
Second, the Court “consider[s] the factual allegations in [the complaint] to determine if they
plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for enough facts to raise
a reasonable expectation that discovery will reveal evidence of’ the necessary claims or elements.”
Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009). This evaluation will “be a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
In determining whether to grant a motion to dismiss, a district court may generally not “go
outside the pleadings.” Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). When ruling
on a motion to dismiss a pro se complaint, however, a district court is “required to look beyond the
[plaintiff’s] formal complaint and to consider as amendments to the complaint those materials
subsequently filed.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); Clark v. Huntleigh Corp.,
119 F. App’x 666, 667 (5th Cir. 2005) (finding that because of plaintiff’s pro se status, “precedent
compels us to examine all of his complaint, including the attachments”); FED. R. CIV. P. 8(e)
(“Pleadings must be construed so as to do justice.”). Furthermore, a district court may consider
documents attached to a motion to dismiss if they are referred to in the plaintiff’s complaint and are
central to the plaintiff’s claim. Scanlan, 343 F.3d at 536.
DISCUSSION AND ANALYSIS
On January 2, 2015, JPMC filed a motion to dismiss (Dkt. #8). No response was filed.
Local Rule CV-7(d) provides as follows:
Response and Briefing. The response and any briefing shall be contained in one document.
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A party opposing a motion shall file the response, any briefing and supporting documents
within the time period prescribed by Subsection (e) of this rule. A response shall be
accompanied by a proposed order conforming to the requirements of Subsection (a) of this
rule. Briefing shall contain a concise statement of the reasons in opposition to the motion and
a citation of authorities upon which the party relies. In the event a party fails to oppose a
motion in the manner prescribed herein, the court will assume that the party has no
opposition. (Emphasis added).
Plaintiffs have not filed a response. Since Plaintiffs have not filed a response, the Court will assume
that they are not opposed to the Court’s granting Defendant’s motion to dismiss. Furthermore, a
review of Defendant’s motion illustrates that Plaintiffs have no plausible claims against Defendant.
The Court has reviewed the motion to dismiss and finds that Defendant’s motion to dismiss should

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be granted. Plaintiffs fail to allege any facts that would make any of their claims plausible.
It is therefore ORDERED that Defendant’s Motion to Dismiss (Dkt. #8) is hereby
GRANTED and Plaintiffs’ claims against Defendant JPMorgan Chase Bank, N.A. are DISMISSED
with prejudice.

SIGNED this 17th day of February, 2015.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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