Gordon v. Bank of N.Y. Mellon Corp.

• Decision Date: 07 August 2013
• Docket Number: No. 4:12 CV 18.,4:12 CV 18.
• Parties: Gerald P. GORDON and Tahara D. Brown, Plaintiffs, v. BANK OF NEW YORK MELLON CORPORATION, Safeguard Properties, LLC, and John Doe Corporation, Defendants.
• Court: U.S. District Court — Northern District of Indiana

964 F.Supp.2d 937

Gerald P. GORDON and Tahara D. Brown, Plaintiffs,

v.BANK OF NEW YORK MELLON CORPORATION, Safeguard Properties, LLC, and John Doe Corporation, Defendants.

No. 4:12 CV 18.

United States District Court, N.D. Indiana, Hammond Division.

Aug. 7, 2013.

Carlin Phillips, Phillips Garcia Law, Dartmouth, MA, Robert E. Duff, The Law Office of Robert E. Duff, Lebanon, IN, for Plaintiffs.

Carolyn Clay Hall, Meaghan Klem Haller, Scott R. Leisz, Bingham Greenebaum Doll LLP, Michael J. Blinn, Richard M. Malad, Cohen & Malad LLP, Indianapolis, IN, for Defendants.

OPINION AND ORDER

JAMES T. MOODY, District Judge.

Defendants Bank of New York Mellon Corporation (DE # 27) and Safeguard Properties, LLC (DE # 18) have both moved to dismiss Counts A, B, D, E, and F of plaintiffs Gerald Gordon and Tahara Brown's complaint. For the following reasons, those motions are granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 22, 2010, plaintiffs purchased property in Newton County, IN, located at 1984 W. State Road 10, Lake Village, IN 46349. (DE # 8 at ¶ 9.) This property is referred to as Lots 2, 3, 4, and 6 of JL Walker's 6th Subdivision. ( Id.) There is a single family residence on Lots 3 and 4. ( Id.) Plaintiffs purchased this property with cash, and do not have any outstanding loans or mortgages associated with the property. ( Id. at ¶ 10.) The property abutting plaintiffs' property to the north and the south was at one point owned by Steven Ashcraft. ( Id. at ¶ 11.) In 2006, the CIT Group/Consumer Finance, Inc. foreclosed on the property owned by Ashcraft, and in 2009, the CIT Group/Consumer Finance, Inc. assigned its rights in the Ashcraft property to defendant Bank of New York Mellon Corporation (“BONY”). ( Id. at ¶¶ 12–14.)

Plaintiffs moved into their house at 1984 W. State Road 10, Lake Village, IN in 2010. ( Id. at ¶ 16.) Plaintiffs also own a house in Arizona, and in December 2010, plaintiffs left for Arizona. ( Id. at ¶¶ 16–17.) Prior to leaving for Arizona, plaintiffs winterized and secured their house. ( Id.) In May of 2011, while still in Arizona, plaintiffs learned that someone had mowed their lawn. ( Id. at ¶ 18.) On June 2, 2011, plaintiffs had a friend check on the house for them. ( Id. at ¶ 19.) Plaintiffs' friend found a sticker at the home, which identified defendant Safeguard Properties (“Safeguard”) as a contractor which had been to the house to perform work. ( Id. at ¶¶ 19–20.) Plaintiffs' friend also observed that the door to the house was unlocked, and went inside, where he discovered that much of plaintiffs' personal property had been removed from the home. ( Id. at ¶¶ 21–22.) Additionally, the house itself was trashed, and there were dead animals inside. ( Id. at ¶ 22.) Plaintiffs' friend informed plaintiffs of what he had found. ( Id. at ¶¶ 21–22.)

After learning of the condition of the house, plaintiffs called the police and filed a police report. ( Id. at ¶ 23.) Plaintiffs also called Safeguard and other entities to try to figure out who had been to the house and for what reason. ( Id. at ¶ 24.) Safeguard and the other entities plaintiffs contacted were not forthcoming with information. ( Id.) On June 7, 2011, plaintiffs had all of the locks at the house replaced. ( Id. at ¶ 25.)

On August 11, 2011, plaintiffs returned from Arizona to find that the back door of the house had been broken and was standing open. ( Id. at ¶ 26.) They also discovered that all of the doors in the house were damaged, and the inside of the house was trashed. ( Id.) Most of plaintiffs' personal property was gone, and there were signs that the house had been winterized by a contractor. ( Id.)

Plaintiffs eventually learned that their property had been listed by defendant BONY with a local realtor, Landmark Realty (“Landmark”). ( Id. at ¶ 29.) Landmark had an online listing which contained pictures of plaintiffs' property. ( Id.) The listing identified the house as being part of the property listed for sale. ( Id.) Plaintiff Gerald Gordon contacted Landmark, and was told that Landmark had informed BONY that plaintiffs' house was not part of the property that BONY owned. ( Id. at ¶ 30.) Mr. Gordon was also informed that Landmark had actually contacted the Newton County Building Inspector to confirm that BONY did not own the house. ( Id.)

Plaintiffs allege that defendants BONY, and/or its agents and contractors, ordered the listing of plaintiffs' property with Landmark. ( Id. at ¶ 31.) Additionally, plaintiffs allege that BONY and/or its agents and contractors knew that BONY had no legal interest in plaintiffs' property because of the assignment of the property, the recorded property records, and other information they obtained about the property.¹ ( Id.) Plaintiffs also allege that despite this knowledge, BONY ordered contractors to break into the house, change the locks, remove personal property, winterize the house, and cause other damage to plaintiffs' house. ( Id.) Plaintiffs further allege that defendants hired agents and/or contractors, including defendant John Doe Corporation, to seize plaintiffs' home and property and set it for sale, despite knowing that these actions would cause injury to plaintiffs. ( Id. at ¶ 32.)

On March 22, 2012, plaintiffs filed the current action against defendants. In their complaint, plaintiffs bring the following claims against all defendants: Civil conspiracy (Count A), violations of the Indiana Crime Victim's Relief Act (Count B), trespass (Count C), intentional infliction of emotional distress (Count D), invasion of privacy (Count E), violations of the fair Debt Collection Practices Act (Count F), and negligent hiring and supervision (Count H). Additionally, plaintiffs have brought a negligence claim against defendant BONY (Count G). Defendants Safeguard (DE # 18) and BONY (DE # 27) have now moved to dismiss Counts A, B, D, E, and F of plaintiffs' complaint.

II. LEGAL STANDARD

Defendants have moved to dismiss plaintiffs' claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. A judge reviewing a complaint under a Rule 12(b)(6) standard must construe it in the light most favorable to the non-moving party, accept well-pleaded facts as true, and draw all inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir.2010). Under the liberal notice-pleading requirements of the Federal Rules of Civil Procedure, the complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy Rule 8(a), “the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Erickson, 551 U.S. at 93, 127 S.Ct. 2197 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

“While the federal pleading standard is quite forgiving, ... the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ray v. City of Chicago, 629 F.3d 660, 662–63 (7th Cir.2011); Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955. A plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). To meet this standard, a complaint does not need detailed factual allegations, but it must go beyond providing “labels and conclusions” and “be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Sanjuan v. Am. Bd. of Psychiatry & Neurology, 40 F.3d 247, 251 (7th Cir.1994) among other authorities). As the Seventh Circuit recently explained, a complaint must give “enough details about the subject-matter of the case to present a story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.2010).

However, the plaintiff does not need to plead facts that establish each element of a cause of action and, “[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint.” Sanjuan, 40 F.3d at 251. Even if the truth of the facts alleged appears doubtful, and recovery remote or unlikely, the court cannot dismiss a complaint for failure to state a claim if, when the facts pleaded are taken as true, a plaintiff has “nudged their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955.

III. ANALYSIS²A. Civil Conspiracy (Count A)

Plaintiffs contend that defendants engaged in a civil conspiracy to commit all of the other torts alleged in the complaint. (DE # 8 at 4.) Both Safeguard and BONY have now moved to dismiss plaintiffs' civil conspiracy claim. (DE # 19 at 9–10; DE # 28 at 4–5.) Specifically, defendants argue that plaintiffs have failed to allege sufficient factual support to put them on notice of the factual basis for plaintiffs' civil conspiracy claim. (DE # 19 at 9–10; DE # 28 at 4–5.)

As both defendants correctly point out, civil conspiracy is not an independent cause of action in Indiana. Heyser v. Noble Roman's Inc., 933 N.E.2d 16, 20 (Ind.Ct.App.2010). Instead, Indiana allows a cause of action for damages resulting from a civil conspiracy, Huntington Mortg. Co. v. Debrota, 703 N.E.2d 160, 168 (Ind.Ct.App.1998), and a “civil conspiracy must be alleged with an underlying tort.” Noble Roman's Inc., 933 N.E.2d at 20. Indiana defines a civil conspiracy as “a combination of two or more persons, by concerted action, to accomplish an unlawful purpose or to accomplish some purpose, not in itself unlawful, by unlawful means.” Debrota, 703 N.E.2d at 168. “It has been made clear that in order to state a claim upon which relief...