Porter v. JPMorgan Chase Bank National Association et al, No. 4:2013cv01948 - Document 45 (S.D. Tex. 2014)
Court Description: 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)
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Porter v. JPMorgan Chase Bank National Association et al Doc. 45 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. Dockets.Justia.com 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, -2- 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. -3- 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 -6-
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