Graveling v. Bankunited N.A., Case No. 2:13–cv–120–VEH.

• Decision Date: 27 August 2013
• Docket Number: Case No. 2:13–cv–120–VEH.
• Citation: 970 F.Supp.2d 1243
• Parties: James GRAVELING and Lori Graveling, Plaintiffs, v. BANKUNITED N.A., et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

970 F.Supp.2d 1243

James GRAVELING and Lori Graveling, Plaintiffs,

v.BANKUNITED N.A., et al., Defendants.

Case No. 2:13–cv–120–VEH.

United States District Court,

N.D. Alabama,

Southern Division.

Aug. 27, 2013.

James Graveling, Odenville, AL, pro se.

Lori Graveling, Odenville, AL, pro se.

Brittany A. Kimbrough, Robert Ryan Daugherty, Stephen B. Porterfield, Sirote & Permutt PC, Charles D. Stewart, Thomas S. Hiley, Spain & Gillon LLC, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

VIRGINIA EMERSON HOPKINS, District Judge.

Before the court are Motions To Dismiss filed by Defendants BankUnited, N.A. (“BankUnited”), Castle Mortgage Company (“Castle”), Sirote & Permutt (“Sirote”), Ryan Daugherty (“Mr. Daugherty”), Ginny Rutledge (“Ms. Rutledge”), and Andrew P. Benefield (“Mr. Benefield”) (collectively, “Defendants”). (Docs. 33, 35, 37). Also before the court is Defendants' joint Motion To Strike (Docs. 49, 52, 53) various exhibits attached to the Gravelings' Responses (Docs. 43, 46, 47) to their Motions to Dismiss. For the following reasons, the Defendants' Motion to Strike is GRANTED, and their Motions to Dismiss are GRANTED in part and DENIED in part.

I. Procedural History

The Plaintiffs, James and Lori Graveling (the “Gravelings”), initiated this action on January 18, 2013. (Doc. 1). They are proceeding pro se. On January 24, 2013, the court sua sponte ordered repleader. (Doc. 2). On February 27, 2013, the Gravelings filed their first Amended Complaint (Doc. 6) (“FAC”), which they “supplemented” on February 28, 2013. (Doc. 8). The Defendants filed Motions To Dismiss on March 22, March 25, and April 8, 2013. (Docs. 12, 13, 18). On April 30, 2013, the Gravelings filed their second Amended Complaint (“SAC”). (Doc. 28). On May 7, 2013, the court termed as moot, in light of the SAC, the then-pending Motions to Dismiss. (Doc. 34).

On May 3, 13, and 14, 2013, the Defendants timely filed new Motions To Dismiss. (Docs. 33, 35, 37). The Gravelings filed responsive oppositions on May 28 and June 4, 2013. (Docs. 43, 46, 47). Defendants replied on June 10 and June 14. (Docs. 50, 51, 54, 55).

II. Standards of ReviewA. Motions to Dismiss

Generally, the Federal Rules of Civil Procedure require only that the complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). However, to survive a motion to dismiss brought under Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“Twombly ”). “A claim has facial plausibility when the plaintiff pleads 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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955) (“Iqbal ”). That is, the complaint must include enough facts “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation and footnote omitted). Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon “labels or conclusions” or “naked assertion[s]” without supporting factual allegations. Id. at 555, 557, 127 S.Ct. 1955 (citation omitted). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 563, 127 S.Ct. 1955 (citation omitted). When ruling on a motion to dismiss, a court must “take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.2008) (citing Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir.2006)).

B. Pro Se Plaintiffs

As noted, the Gravelings are proceeding pro se in this action. “[A] document filed pro se is to be liberally construed ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Williams v. Quality Filters, Inc., Civil Action No. 07–0015–WS–B, 2007 WL 4219201, at *2 (S.D.Ala. Nov. 27, 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). Even so, “a pro se complaint still must state a claim upon which the Court can grant relief.” Farkas v. Suntrust Mortgage Inc., Civil Action No. 10–0512–CG–M, 2010 WL 5525359, at *4 (S.D.Ala. Dec. 15, 2010) (citation omitted), report and recommendation adopted by2011 WL 39048 (S.D.Ala. Jan. 5, 2011), aff'd,447 Fed.Appx. 972 (11th Cir.2011) (unpublished).

III. Motion To Strike

The Defendants jointly move to strike the following documents:

From the “Evidentiary Material in Support of Response to Castle's Motion to Dismiss” (Doc. 44)

• Exhibit A—the text of Public Law 97–280

• Exhibit B—“A List of Maxims of Equity”

• Exhibit C—“Offer Towards Settlement Agreement”

• Exhibit D—Affidavit of William McCaffrey

• Exhibit G—Affidavit of Franky Rodgers

• Exhibit H—an entry from The World Book Encyclopedia

• Exhibit I—an article titled “Banking Secrets That Banks Don't Want Published”

• Exhibit K—an article titled “Banking Systems”

From the Gravelings' Response (Doc. 46) to BankUnited's Motion to Dismiss

• Exhibit 1—an article titled “Merscorp Lacks Right to Transfer Mortgages, Judge Says”

• Exhibit 2—a printout from a website titled “MERS 101”

• Exhibit 3—an article from Wisconsin Lawyer

The Defendants variably argue why, under the Federal Rules of Evidence, the above materials are irrelevant, unauthenticated,hearsay, or otherwise inadmissible. Without addressing these arguments, the court concludes that it will exercise its discretion under Rule 12(f) of the Federal Rules of Civil Procedure to strike these documents from its consideration at this stage of the litigation. When considering a Motion to Dismiss, a district court is generally “constrained to review the allegations as contained within the four corners of the complaint and may not consider matters outside the pleading without converting the defendant's motion into one for summary judgment.” Crowell v. Morgan, Stanley, Dean Witter Servs. Co., Inc., 87 F.Supp.2d 1287, 1290 (S.D.Fla.2000) (citations omitted). Rule 12(f) states that the court may “on its own” decide to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Accordingly, the court finds the attachments submitted by the Gravelings above to be “immaterial” to its disposition of Defendants' Motions To Dismiss here. The court will therefore GRANT Defendants' Motion To Strike these documents.

The court will note the following point, however. The Eleventh Circuit “has recognized an important qualification to [the “four corners” rule] where certain documents and their contents are undisputed: “In ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged.” ” Speaker v. U.S. Dep't of Health & Human Servs. Ctrs. for Disease Control & Prev., 623 F.3d 1371, 1379 (11th Cir.2010) (quoting SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir.2010)). In this case, the Gravelings attached various documents as exhibits to their original Complaint and their FAC—the authenticity of which Defendants do not dispute. Unlike the attachments struck above, these documents are evidently central to the Gravelings' claims, as the Gravelings frequently refer to them in the various iterations of their Complaint. The court thus will treat these documents as part of their SAC for Rule 12(b)(6) purposes. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.1997) (citation omitted).

IV. Motions To DismissA. Introduction

The Gravelings have filed six counts in this action:

• Fraud (against Castle)

• Fraud (against Coastal)

• Wrongful Foreclosure (against BankUnited)

• Illegal Foreclosure Sale Auction (against Mr. Benefield)

• Refusal to Cease Debt Collecting, in violation of the Fair Debt Collection Practices Act (“FDCPA”) (against Coastal)

• Refusal to Cease Debt Collecting, in violation of the FDCPA (against Sirote, Ms. Rutledge, and Mr. Daugherty)

Doc. 28 ¶¶ 181–260.¹ Coastal has not filed a Motion To Dismiss, so the court will only examine the legal sufficiency of those counts against Castle, BankUnited, Mr. Benefield, Sirote, Ms. Rutledge, and Mr. Daugherty.

B. The Gravelings' fraud claim against Castle must be dismissed because it is impermissibly vague and implausible.

The Gravelings have not plausibly claimed fraud against Castle. Under Alabama law, a plaintiff must prove the following elements to establish fraud: (1) a false representation (2) of a material existing fact (3) reasonably relied upon by the plaintiff (4) who suffered damage as a proximate consequence of the misrepresentation. Mantiply v. Mantiply, 951 So.2d 638, 653 (Ala.2006) (citation omitted); see also Drummond Co. v. Walter Indus., Inc., 962 So.2d 753, 788 (Ala.2006) (similar) (citation omitted); LaBauve v. Olin Corp., 231 F.R.D. 632, 673 (S.D.Ala.2005) (“[P]laintiffs' fraud claims generally require a showing that defendants made a false representation concerning a material fact, that defendants knew the statement was false or made it in reckless disregard for its truth or falsity, that the plaintiff reasonably relied upon such statement, and that the plaintiff was damaged by virtue of such reliance.”) (citation omitted).

In Count # 1 of their SAC, the Gravelings claim that Castle falsely represented that “they were a lender who would give us borrowers a ‘loan.’ ” Doc. 28 ¶ 183. According to the Gravelings, Castle did so knowingly and intended that the Gravelings “should...