Porter v. JPMorgan Chase Bank National Association et al
Filing
45
OPINION AND ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 37 MOTION to Dismiss 36 Amended Complaint and Brief in Support, 44 Memorandum and Recommendations, (Signed by Judge Melinda Harmon) Parties notified.(rvazquez)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BARBARA PORTER,
§
§
Plaintiff,
§
§
VS.
§
§
J.P. MORGAN CHASE BANK, N.A., §
BANK OF AMERICA, N.A., MERSCORP§
HOLDINGS, INC., MORTGAGE
§
ELECTRONIC REGISTRATION
§
SYSTEMS, INC., and SELECT
§
PORTFOLIO SERVICING, INC.,
§
§
Defendants.
§
CIVIL ACTION NO. H-13-1948
OPINION AND ORDER
Pending before the Court in the above referenced action,
seeking a declaratory judgment and asserting claims to quiet title
and for trespass to try title, unjust enrichment, and wrongful
foreclosure on the property at 11211 Marseilles Lane, Houston,
Harris County, Texas 77082 in 2009,
is Defendant J.P. Morgan
Chase Bank, N.A.’s motion to dismiss Plaintiff Barbara Porter’s
(“Porter’s”) Second Amended Complaint1 (instrument #37) pursuant
to Federal Rule of Civil Procedure 12(b)(6) and United States
Magistrate Frances Stacy’s Memorandum and Recommendation (#44)
that it be granted.
Porter has not filed any objections to the
latter document.
Standard of Review
Findings of the United States Magistrate Judge to which
no specific objections are made require that the Court only to
decide
whether
1
the
Memorandum
and
Recommendation
is
clearly
Porter’s Second Amended Complain is instrument #36.
erroneous or contrary to law.
Id., citing U.S. v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989).
reject,
or
modify,
in
whole
The district court “may accept,
or
in
part,
the
recommendations made by the magistrate judge.”
findings
or
28 U.S.C. §
636(b)(1)(C).
Federal Rule of Civil Procedure 8(a)(2) provides, “A
pleading that states a claim for relief must contain . . . a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
When a district court reviews a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the
complaint in favor of the plaintiff and take all well-pleaded
facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d
757, 763 (5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009).
The plaintiff’s legal conclusions are not
entitled to the same assumption. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)(“The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.”), citing Bell Atlantic Corp. v. Twombly, 556 U.S.
662, 678 (2007); Hinojosa v. U.S. Bureau of Prisons, 506 Fed.
Appx. 280, 283 (5th Cir. Jan. 7, 2012).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s
obligation
‘entitle[ment]
to
to
relief’
provide
the
requires
more
‘grounds’
than
of
his
labels
and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .”
Bell Atlantic Corp. v. Twombly,
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127 S. Ct. 1955, 1964-65 (2007)(citations omitted).
“Factual
allegations must be enough to raise a right to relief above the
speculative level.”
Id. at 1965, citing 5 C. Wright & A. Miller,
Federal Practice and Procedure
§ 1216, pp. 235-236 (3d ed.
2004)(“[T]he pleading must contain something more . . . than . .
.
a statement of facts that merely creates a suspicion [of] a
legally cognizable right of action”). “Twombly jettisoned the
minimum notice pleading requirement of Conley v. Gibson, 355 U.S.
41 . . . (1957)[“a complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief”], and instead required that a complaint
allege enough facts to state a claim that is plausible on its
face.”
St. Germain v. Howard,556 F.3d 261, 263 n.2 (5th Cir.
2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007)(“To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead ‘enough facts to state a claim to relief
that is plausible on its face.’”), citing Twombly, 127 S. Ct. at
1974). “‘A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’”
Montoya v.
FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.
2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The
plausibility standard is not akin to a “probability requirement,”
but asks for more than a “possibility that a defendant has acted
unlawfully.”
Twombly, 550 U.S. at 556.
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Dismissal is appropriate
when the plaintiff fails to allege “‘enough facts to state a claim
to relief that is plausible on its face’” and therefore fails to
“‘raise a right to relief above the speculative level.’” Montoya,
614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570.
In Ashcroft v. Iqbal, 556 U.S. at 679, the Supreme Court
stated that “only a complaint that states a plausible claim for
relief survives a motion to dismiss,” a determination involving “a
context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” “[T]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements do not suffice” under Rule 12(b).
1949.
Iqbal, 129 S. Ct. at
The plaintiff must plead specific facts, not merely
conclusory allegations, to avoid dismissal.
Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “Dismissal
is proper if the complaint lacks an allegation regarding a
required element necessary to obtain relief . . . .“
Rios v. City
of Del Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied,
549 U.S. 825 (2006).
As noted, on a Rule 12(b)(6) review, although generally
the court may not look beyond the pleadings, the Court may examine
the complaint, documents attached to the complaint, and documents
attached to the motion to dismiss to which the complaint refers
and which are central to the plaintiff’s claim(s), as well as
matters of public record.
Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010), citing
Collins, 224 F.3d at 498-99; Cinel v. Connick, 15 F.3d 1338, 1341,
-4-
1343 n.6 (5th Cir. 1994).
See also United States ex rel. Willard
v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir.
2003)(“the court may consider . . . matters of which judicial
notice may be taken”).
Taking judicial notice of public records
directly relevant to the issue in dispute is proper on a Rule
12(b)(6) review and does not transform the motion into one for
summary judgment.
Funk v. Stryker Corp., 631 F.3d 777, 780 (5th
Cir. 2011). “A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b).
Court’s Decision
The Court has reviewed the record, the applicable law,
and
United
States
Recommendation.
Magistrate
Judge
Stacy’s
Memorandum
and
The Court finds that the Magistrate Judge has
accurately summarized the facts and correctly stated and applied
the law to them and to the documents submitted by the parties.
Furthermore, Porter has already amended her pleadings
twice and still fails to allege a viable claim under the law and
is not entitle to another “bite of the apple.”
Accordingly, the Court
ADOPTS the Memorandum and Order as its own and
ORDERS that Porter’s Second Amended Complaint is hereby
DISMISSED with prejudice under Rule 12(b)(6) for failure to state
-5-
a claim upon which relief may be granted.
SIGNED at Houston, Texas, this
28th
day of October,
2014.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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