United States District Court, S.D. Georgia, Savannah Division
RAYMMON R. SHUMAN, Plaintiff,
FIRST GUARANTY MORTGAGE CORPORATION, et al., Defendants.
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
the Court are defendants' Motions to Dismiss, doc. 14 and
doc. 16. For the following reasons, the motions are
reconstrued as motions for a more definite statement and are
GRANTED IN PART AND DENIED IN PART.
Plaintiff shall have thirty days from the date of this Order
to file an amended complaint correcting the deficiencies
identified herein. The Court will also proactively extend the
deadline for defendants' response to the amended
pleading. Fed.R.Civ.P. 15(a)(3). They shall have thirty days
from the date of that filing to file renewed motions to
dismiss. Because plaintiff will have an opportunity to amend
his complaint, his Motion to Add Third Party Defendant, doc.
29, is DISMISSED AS MOOT.
March 8, 2019, plaintiff filed a Complaint containing a
myriad of claims apparently related to a foreclosure on his
property. Doc. 1. He also filed a motion for leave to proceed
in forma pauperis. Doc. 2. However, because
plaintiff's application indicated that he had the means
to pay the filing fee, the Court recommended that his motion
be denied. Doc. 5 (see also doc. 9 Order adopting
report and recommendations). Plaintiff ultimately paid the
filing fee. See docket entry on March 11, 2019.
Defendants both filed motions to dismiss plaintiff's
complaint which are the basis of the instant order.
Standard of Review
Rule of Civil Procedure 8(a)(2) requires a complaint to
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “A pleading that offers ‘labels and
conclusions' or a ‘formulaic recitation of the
elements of a cause of action will not do.' ”
Id. (quoting Twombly, 550 U.S. at 555).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.' ” Id. (quoting
Twombly, 550 U.S. at 557) (alteration in original).
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.' ”
Id. (quoting Twombly, 550 U.S. at 570). For
a claim to have facial plausibility, the plaintiff must plead
factual content that “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Sinaltrainal v. Coca-Cola
Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (quoting
Iqbal, 556 U.S. at 678) (internal quotations omitted).
Plausibility does not require probability, “but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678.
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of entitlement to relief.' ”
Id. (quoting Twombly, 550 U.S. at 557).
Additionally, a complaint is sufficient only if it gives
“fair notice of what the … claim is and the
grounds upon which it rests.” Sinaltrainal,
578 F.3d at 1268 (quotations omitted) (quoting
Twombly, 550 U.S. at 555).
the Court considers a motion to dismiss, it accepts the
well-pleaded facts in the complaint as true.
Sinaltrainal, 578 F.3d 1252 at 1260. However, this
Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678. Moreover, “unwarranted
deductions of fact in a complaint are not admitted as true
for the purpose of testing the sufficiency of
[plaintiff's] allegations.” Sinaltrainal,
578 F.3d at 1268 (citing Aldana v. Del Monte Fresh
Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir.
2005)). That is, “[t]he rule ‘does not impose a
probability requirement at the pleading stage,' but
instead simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary element.” Watts v. Fla. Int'l
Univ., 495 F.3d 1289, 1295-96 (11th Cir. 2007)
(quoting Twombly, 550 U.S. at 545).
argue that plaintiff's complaint should be dismissed as a
shotgun pleading. As an initial matter, though this complaint
does not conform with the requirements of Rule 8, it is not
per se a shotgun pleading. A shotgun pleading
typically “contains several counts, each one
incorporating by reference the allegations of its
predecessors, leading to a situation where most of the counts
(i.e., all but the first) contain irrelevant factual
allegations and legal conclusions.” Strategic
Income Fund, LLC v. Spear, Leeds & Kellogg Corp.,
305 F.3d 1293, 1295 (11th Cir. 2002). However, defendants are
correct that a more definite statement from plaintiff is
necessary for this case to proceed.
brief, plaintiff alleges that he attempted to make a loan
modification to stop a foreclosure sale but that his
servicing company failed to cancel that foreclosure. Doc. 1
at 4. From that very bland recitation of the facts, he
alleges that dual tracking is prohibited pursuant to 12
C.F.R. § 1024.41(g), the prior judgment is void under
Federal Rule of Civil Procedure Title VII and Rule 60, and
some unclear violations of the Fair Debt Collection Practices
Act. Id. He also requests an injunction or
restraining order under Rule 65 and argues that
“promissory estoppel” is violated. Id.
extremely limited factual recitation simply fails to relate
to the charges alleged. For some claims he seeks to bring, he
simply does not allege sufficient facts. For Count 1, he
claims that dual tracking is prohibited as long as a
completed loan modification application is submitted at least
37 days before the scheduled sale, but he fails to allege
that he submitted such an application. Doc. 1 at 4. For Count
2, he claims that defendants violated “promissory
estoppel, ” because he relied on their
“promise” to cancel his foreclosure sale.
Id. at 5. However, he never asserts that such a
promise was actually made. Id. For others, he
provides no factual support whatsoever. See Count 3
(“Defendants are in violations [sic] of Fair Debt
Collection Practice act (FDCPA)”); Count 4 (“Any
judgment . . . [is] Void because Defendants violated 12
C.F.R. § 1024.41(g)(2014)); Count 5 (“Plaintiff
was not and was never a Tenant at sufferance and all
judgments to evict Plaintiff are void and not
voidable.”); Count 6 (“Plaintiff is entitled to
punitive and statutory damages”). Id. at 5-6.
This is simply insufficient under Rule 8.