Kim v. CTX Mortgage Company LLC et al
Memorandum Opinion and Order: Came on for consideration the motion of defendant Conrad Consulting, LLC ("Conrad") to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Plaint iff, Chin Kim, has filed a response, and Conrad has filed a reply. Having reviewed the motion, the response, the reply, plaintiff's first amended complaint, and applicable legal authorities, the court concludes that the motion should be gran ted on the ground that plaintiff's first amended complaint fails to state a claim upon which relief can be granted. Therefore, The court ORDERS that all claims and causes of action asserted by plaintiff against Conrad be, and are hereby, dismissed. (Ordered by Judge John McBryde on 7/20/2017) (edm)
IN THE UNITED STATES DISTRICT OURT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
· CLERK, U.3. Di:STlUC.i
CTX MORTGAGE COMPANY, LLC,
Came on for consideration the motion of defendant Conrad
Consulting, LLC ("Conrad") to dismiss for lac.k of subject matter
jurisdiction and failure to state a claim upon which relief can
be granted. Plaintiff, Chin Kim, has filed a response, and Conrad
has filed a reply. Having reviewed the motion, the response, the
reply, plaintiff's first amended complaint, and applicable legal
authorities, the court concludes that the motion should be
granted on the ground that plaintiff's first amended complaint
fails to state a claim upon which relief can be granted.
Plaintiff initiated this action on February 13, 2017 by
filing an original complaint. Doc.' 1. After informing plaintiff
'The "Doc. _" references are to the number of the item on the docket in this action.
that such complaint lacked sufficient facts to establish the
court's subject matter jurisdiction, the court ordered plaintiff
to file an amended complaint. Doc. 7. On March 8, 2017, plaintiff
filed his first amended complaint. Doc. 8. Plaintiff's first
amended complaint alleged a mixture of federal and state law
claims against defendants, CTX Mortgage Company, LLC, John L.
Matthews, as Trustee, Timothy M. Bartosh, as Trustee, Mortgage
Electronic Registration Systems, Inc.
(MERS), Wells Fargo Bank,
("Wells Fargo"), Craig Muirhead, as Substitute Trustee
("Muirhead"), Roger Eldard, as Agent of Buckley Madole, P.C., as
Attorneys for Wells Fargo, Conrad, and Clint Burgess, in his
Capacity as Constable of Precinct 7 ("Burgess"). To date, all
claims and causes of action have been dismissed except for
plaintiff's claims against Conrad. See Doc. 23; Doc. 48; Doc. 50;
Plaintiff's remaining claims against Conrad are:
wrongful eviction; and (2) conversion. Plaintiff alleges that he
was wrongfully evicted "because Conrad did not have standing nor
a superior right to possession of the property to remove
from the premises." Doc. 8 at 27,
plaintiff contends that on or about February 11, 2015, Conrad
converted plaintiff's property when it "unlawfully and without
authority assumed dominion and control over [plaintiff's]
property . . . inconsistent with [plaintiff's]
property in that
rights in this
[Conrad] removed said property from
[plaintiff's] home, and took possession of two rifles,
ammunition, miscellaneous papers, check books and credit cards."
Grounds of the Motion
Conrad asserts that plaintiff's claims against it should be
dismissed for lack of subject matter jurisdiction and failure to
state a claim upon which relief can be granted. Specifically,
Conrad argues that there is no supplemental jurisdiction over
plaintiff's claims because such claims do not derive from the
same nucleus of operative facts common to plaintiff's claims
based on federal question jurisdiction. As to plaintiff's
wrongful eviction claim, Conrad asserts that it had standing to
seek eviction pursuant to the deed of trust. Moreover, Conrad
argues that plaintiff's election to seek damages rather than
challenge the validity of the trustee deed to Conrad is
inconsistent with a claim for wrongful eviction. As to
plaintiff's conversion claim, Conrad argues that it did not
possess a duty to preserve plaintiff's personal property after it
was removed and thus cannot be liable, as a matter of law, for
Applicable Pleading Principles
Rule 12 (b) (1)
Under Rule 12(b) (1) of the Federal Rules of Civil Procedure,
a case is properly dismissed when the court "lacks the statutory
or constitutional power to adjudicate the case." Home Builders
Ass•n of Miss.,
Inc. v. City of Madison, Miss., 143 F.3d 1006,
(5th Cir. 1998)
(citations omitted). The court should grant
a motion to dismiss pursuant to Rule 12(b) (1)
"only if it appears
certain that the plaintiff cannot prove any set of facts in
support of his claim that would entitle him to relief." Id. The
court may dismiss a complaint for lack of subject matter
jurisdiction upon consideration of "(1) the complaint alone;
the complaint supplemented by the undisputed facts evidenced in
the record; or (3) the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts." Lane v.
Halliburton, 529 F.3d 548, 557
(5th Cir. 2008)
Barrera-Montenegro v. United States, 74 F.3d 657,
1996)). Upon a defendant's challenge to the court's subject
'Conrad also maintained that plaintiffs claims were barred by limitations; however, Conrad
"withdrew" such argument in its reply filed June 30,2017. Doc. 52 at 2,, 2.
matter jurisdiction, "the plaintiff constantly bears the burden
of proof that jurisdiction does in fact exist." Ramming v. United
States, 281 F. 3d 158, 161 (5th cir. 2001); Menchaca v. Chrysler
Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
Rule 12 (b)
Rule 8 (a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a) (2),
"in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 u.s. 544, 555 (2007)
quotation marks and ellipsis omitted) . Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action. Twombly, 550 U.S. at 555 & n.3. Thus, while a court
must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings. See Ashcroft v. Iqbal,
556 U.S. 662, 679
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
allege a plausible right to relief, the facts pleaded must
suggest liability; allegations that are merely consistent with
unlawful conduct are insufficient.
Twombly, 550 U.S. at 566-69.
"Determining whether a complaint states a plausible claim for
[is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common
The Court Elects to Exercise Supplemental Jurisdiction over
Plaintiff's Claims Against Conrad
The court's subject matter jurisdiction over this action as
a whole is premised on federal question jurisdiction. See 28
1331; Doc. 8 at 4, , 12. However, the court's
jurisdiction over plaintiff's claims against Conrad are based on
supplemental jurisdiction, as plaintiff's wrongful eviction and
conversion claims are both torts actionable under state law.
Under 28 U.S.C.
1367(c) (3), a district court may decline to
exercise supplemental jurisdiction over claims where, as here,
all claims over which the court had original jurisdiction are no
longer in the suit. "District courts enjoy wide discretion in
determining whether to retain supplemental jurisdiction over a
state claim once all federal claims are dismissed." Noble v.
996 F.2d 797, 799
(5th Cir. 1993). In deciding whether to
exercise supplemental jurisdiction, the court should weigh nthe
values of judicial economy, convenience, fairness, and comity .
. • Carnegie-Mellon Univ. v. Cohill, 484 u.s. 343, 350
(citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27
The balance of the above-referenced factors weighs in favor
of the court exercising supplemental jurisdiction. The court,
having already disposed of plaintiff's claims against all
defendants except Conrad, is already familiar with the
allegations asserted in plaintiff's first amended complaint. Both
of plaintiff's claims against Conrad are factually and legally
intertwined with plaintiff's previously asserted claims against
other defendants. Moreover, plaintiff's remaining claims do not
raise novel or complex issues of state law, see
1367 (c) (1), and
the court will not be unduly burdened by resolution of such
claims. Accordingly, the court elects to exercise supplemental
jurisdiction over plaintiff's remaining claims.
Plaintiff's Claims Against Conrad Fail to State Any Claim
Upon Which Relief Can be Granted
The Wrongful Eviction Claim
Wrongful eviction claims typically involve eviction of a
tenant by a landlord. Under Texas law, plaintiff must show:
[t]he existence of an unexpired contract of renting;
occupancy of the premises in question by the tenant;
or dispossession by the landlord;
(4) damages attributable to
such eviction. McKenzie v. Carte, 385 S.W.2d 520, 528 (Tex. Civ.
App.-Corpus Christi 1964, writ denied).
Plaintiff's first amended complaint alleges in a conclusory
manner that the foreclosure sale was void, defendants Wells
Fargo, its agents, and Muirhead did not have title to convey the
property, Conrad did not obtain any title to the property, and
"Conrad's eviction of [plaintiff] was therefore wrongful because
Conrad did not have standing nor a superior right to possession
of the property to remove [plaintiff] from the premises." Doc. 8
at 27, ,, 163-167. The court has already dismissed plaintiff's
wrongful foreclosure claims against Wells Fargo and Muirhead. As
a result, plaintiff cannot rely upon such claims to assert a
wrongful eviction claim against Conrad. Moreover, plaintiff has
not pleaded any fact showing the existence of an unexpired
contract of renting. Thus, plaintiff has failed to state a
wrongful eviction claim against Conrad.
The Conversion Claim
Under Texas law, the elements of conversion are:
(1) plaintiff owned, had legal possession of, or was
entitled to possession of the property; (2) defendant
assumed and exercised dominion and control over the
property in an unlawful and unauthorized manner, to the
exclusion of and inconsistent with plaintiff's rights;
(3) plaintiff made a demand for the property; and (4)
defendant refused to return the property.
Ojeda v. Wal-Mart Stores, Inc., 956 S.W.2d 704, 707 (Tex.
App.-San Antonio 1997, pet. denied).
Here, plaintiff pleads that Conrad "unlawfully and without
authority assumed dominion and control over [plaintiff's]
property" on or about February 11, 2015, the date the writ of
possession was executed. Plaintiff claims that Conrad's actions
were unlawful because "Conrad did not have the legal right to
[plaintiff] from his home .
." Doc. 8 at 29, '
Plaintiff's conclusory allegations fail to state a claim
upon which relief can be granted. For the reasons discussed in
subsection 1, supra, plaintiff has failed to state a wrongful
eviction claim against Conrad. And, plaintiff has not otherwise
shown how Conrad's exercise of dominion and control over the
property was unlawful or unauthorized; plaintiff adds that
"Burgess [the Constable] had no legal right to proceed pursuant
to the writ of possession," id., but such conclusory statement is
insufficient to give rise to a conversion claim against Conrad.
Moreover, plaintiff's claims against Burgess have already been
dismissed. Doc. 23. Accordingly, plaintiff has failed to state a
conversion claim against Conrad.
* * * * *
Buried down in plaintiff's response is a tentative request
that he be permitted to amend his first amended complaint in the
event that the court concludes that he failed to plead sufficient
facts to state a plausible claim against Conrad. Doc. 44 at 11,
The court already has given plaintiff an opportunity to
file an amended complaint, Doc. 7, and nothing in his first
amended complaint suggests that there are facts that plaintiff
could plead in yet another amended complaint that would cure the
pleading deficiencies as to his claims against Conrad. Thus, the
appearance is that permitting plaintiff to file another amended
complaint would be futile.
Furthermore, plaintiff has failed to comply with the local
civil rules of this court concerning a request to file an amended
The title of the document that contains his request
does not identify that it also contains a motion for leave to
file an amended complaint, Doc. 44 at cover, in violation of this
court's Local Civil Rule LR 5.1(c), requiring that a document
"must clearly identify each included . . . motion .
Nor did plaintiff comply with Local civil Rule LR
15.1(a), which requires that when a motion for leave to amend is
it must be accompanied by a copy of the proposed amended
pleading as an exhibit, and the original and another copy of the
proposed amended pleading for use if the motion were to be
Presumably if plaintiff was serious about his request
to file another amended complaint, he would have gone to the
trouble to comply with this court's local civil rules to seek
permission to do so.
The court ORDERS that all claims and causes of action
asserted by plaintiff against Conrad be, and are hereby,
SIGNED July 20, 2017.
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