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Shuman v. First Guaranty Mortgage Corp.

United States District Court, S.D. Georgia, Savannah Division

October 15, 2019




         Before 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.


         On 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.


         I. Standard of Review

         Federal 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         “To 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).

         When 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).

         II. Shotgun Pleading

         Defendants 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.

         In 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[1] 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. at 2.

         Plaintiff's 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.

         III. ...

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