Kerr v. Bank of Am., N.A.
| Decision Date | 16 September 2016 |
| Docket Number | Case No. 3:15-cv-00306-MMD-WGC |
| Parties | DENNIS KERR AND TERRY KERR, Plaintiffs, v. BANK OF AMERICA, N.A., ZION BANK, N.A., NATIONSTAR MORTGAGE LLC, TRUSTEE CORPS, SENECA MORTGAGE SERVICING LLC, ROBINSON TAIT, P.S., AKERMAN LLP NEVADA, AKERMAN LLP UTAH, QUINNEY NEBEKER PC, POORE, ROTH & ROBINSON, P.C., RCO LEGAL PC, Defendants. |
| Court | U.S. District Court — District of Nevada |
Plaintiff Dennis Kerr, proceeding pro se, initially filed this action against Defendants Bank of America, N.A. ("BANA") and Trustee Corps based in part on a foreclosure on a home mortgage loan. (ECF No. 2.) Plaintiff was permitted to amend his Complaint to correct deficiencies identified in the Court's dismissal order. (ECF No. 24.) Plaintiff filed an Amended Complaint (ECF No. 25) ("FAC"), which included his father, Terry Kerr, as an additional plaintiff and now alleges a variety of claims that are difficult to decipher against nine additional defendants. (ECF No. 25 at 3.) Defendants1 have filed Motions to Dismiss ("Motions") or joined another Defendant's Motion. (ECF Nos.32, 34, 38, 52, 55, 58, 60, 62.) Plaintiffs filed responses to these Motions (ECF Nos. 45, 66, 67), and Defendants have replied (ECF Nos. 50, 51, 68, 72, 74, 75, 77). For the reasons discussed below, Defendants' Motions are granted. Plaintiff's FAC is dismissed without prejudice and without leave to amend except with respect to Defendants Nationstar Mortgage, LLC ("Nationstar") and Zion Bank, N.A. ("ZB"), who are dismissed with prejudice.
The following background facts are taken primarily from the FAC, but the Court refers to the original Complaint when necessary to make sense of the allegations in the FAC.2 Because the FAC, like the original Complaint, is difficult to parse, the Court will recite the facts on which Plaintiffs bring suit as best it can. The initial Complaint based relief on an alleged wrongful foreclosure. (ECF No. 2 at 2-3.) The FAC contains a brief reference to a foreclosure and reconveyance of property owned by Dennis Kerr, but he also notes additional trustee sales on properties he owns in Idaho. (ECF No. 25 at 5-7, 9-10.) The FAC also bases claims for relief on an alleged conspiracy between Defendants to kill Plaintiffs and to physically harm, harass, and/or ruin the reputation of Plaintiffs' family. (Id. at 2, 6, 8, 12-13, 17, 19-21.) Plaintiffs also appear to base their claims for relief on the conversion of an insurance check intended to pay for certain repairs and on an illegal modification of Plaintiff Dennis Kerr's monthly loan payments that occurred during his military deployment. (Id. at 14, 17.)
Based on allegations relating to these events, Plaintiff advances seven claims against the eleven named Defendants in the FAC; (1) violation of the Bank Holding Company Act ("BHCA") anti-tying provisions; (2) violations of the Racketeer Influenced
///and Corrupt Organizations Act ("RICO"); (3) violations of the Servicemembers Civil Relief Act ("SCRA") and Housing Economic Recovery Act of 2008 ("HERA"); (3) intentional or negligent infliction of emotional distress; (5) breach of the implied covenant of good faith and fair dealing; (6) tortious interference with a business relationship; and (7) violations of the Truth in Lending Act ("TILA"). (Id. at 10-22.) In response, Defendants have moved for dismissal. (ECF Nos. 32, 38, 52, 55, 58, 60, 62.)
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 US 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Thus, "[t]o 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.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, a district court must accept as true all well-pleaded factual allegations in the complaint; however, legal conclusions are not entitled to a presumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a district court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow a court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint fails to"permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not 'shown' — 'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. A complaint must contain either direct or inferential allegations concerning "all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
Mindful of the fact that "[t]he Supreme Court has instructed the federal courts to liberally construe the 'inartful pleading' of pro se litigants," the Court will view Plaintiffs' pleadings with the appropriate degree of leniency. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982)). However, conclusory allegations made by Plaintiffs will not suffice.
Moreover, the FAC here says far too much and does so unnecessarily. Federal civil pleading is notice pleading. E.g., Starr v. Baca, 652 F.3d 1202, 1212-16 (9th Cir. 2011). The notice pleading requirements of Rule 8(a) can be violated not only "when a pleading says too little," but also "when a pleading says too much." Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013), cert. denied, 135 S. Ct. 57 (Oct. 6, 2014); see also McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) ().
Federal Rule of Civil Procedure 12(b)(2) allows district courts to dismiss an action for lack of personal jurisdiction. "Where defendants move to dismiss a complaint for lack of personal jurisdiction, plaintiffs bear the burden of demonstrating that jurisdiction is appropriate." Dole Food Co. Inc. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002). "When a district court acts on the defendant's motion to dismiss without holding an evidentiary hearing, the plaintiff need make only a prima facie showing ofjurisdictional facts to withstand a motion to dismiss." Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001) (citing Ballard v. Savage, 65 3.d 1495, 1498 (9th Cir. 1995)).
Additionally, a dismissal for lack of jurisdiction is not a dismissal on the merits. See Fed. R. Civ. P. 41(b) (); see McCarney v. Ford Motor Co., 657 F.2d 230, 234 (8th Cir. 1981) ( operation of Rule 41(b)).
All but one of the Defendants who moved for dismissal argue that the FAC is generally deficient and fails to state a claim upon which relief may be granted. One Defendant, Poore, Roth & Robinson, P.C. ("PRR"), asserts that this Court lacks personal jurisdiction over them. The Court agrees with all Defendants and addresses each alleged claim in the context of the various Motions.
A claim under the anti-tying provisions of the Bank Holding Company Act, 12 U.S.C. § 1972, requires a plaintiff to plead and demonstrate that: (1) the banking practice was unusual in the banking industry; (2) an anti-competitive tying arrangement existed; and (3) the practice benefits the bank. See Rae v. Union Bank, 725 F.2d 478, 480 (9th Cir. 1984) ().
Plaintiffs assert that Defendants BANA and ZB put Plaintiffs' mortgage in a holding company and then had the holding company change the mortgage contracts. (ECF No. 25 at 10-11.) The facts as alleged in the FAC do not demonstrate that these Defendants engaged in an unusual practice by modifying Plaintiffs' mortgage loan nor do they demonstrate that an anti-tying arrangement existed. Accepting Plaintiffs' allegations as true, it is not clear how BANA or ZB violated the anti-tying provisions of BHCA.
18 U.S.C. § 1964(c) provides for a private right of action by "[a]ny person injured in his business or property by reason of a violation of § 1962." See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 495 (1985). A civil RICO claim requires a showing of "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as 'predicate acts') (5) causing injury to the plaintiff's 'business or...
To continue reading
Request your trial