Zanaty v. Wells Fargo Bank, N.A.

• Decision Date: 09 November 2016
• Docket Number: Case No.: 2:16-CV-0277-VEH
• Parties: CHARLES ZANATY, and CYNTHIA ZANATY, Plaintiffs, v. WELLS FARGO BANK, N.A., et al., Defendants.
• Court: United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama

CHARLES ZANATY,and CYNTHIA ZANATY, Plaintiffs, v. WELLS FARGO BANK, N.A., et al., Defendants.

Case No.: 2:16-CV-0277-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

November 9, 2016

MEMORANDUM OPINION AND ORDER

I. Introduction

This case concerns an alleged mishandling of a residential mortgage and an attempted wrongful foreclosure on Plaintiffs' home located in Vestavia Hills, Alabama (Doc. 4-1 at 3 ¶ 5),¹ and was removed to this court on February 17, 2016, on the basis of diversity and federal question jurisdiction. (Doc. 1 at 1-2). Plaintiffs filed an amended complaint (Doc. 18) on April 14, 2016. This amended pleading contains 17 separate counts. (See generally Doc. 18).

Pending before the court is Defendants' Renewed Motion to Dismiss (Doc. 28)(the "Motion") filed on May 11, 2016,² which seeks a partial dismissal of Plaintiffs' case. More specifically, the Motion pertains to Counts One through Twelve and Fifteen through Seventeen of Plaintiffs' amended complaint (Doc. 28 at 1) and is supported by a separately filed brief. (Doc. 29). Plaintiffs filed their opposition (Doc. 31) to the Motion on June 8, 2016. On June 15, 2016, Defendants followed with their reply. (Doc. 34). Accordingly, the Motion is now under submission, and, for the reasons explained below, is GRANTED IN PART and otherwise DENIED. Further, Plaintiffs are GRANTED leave to replead some claims, but not any of those that are dismissed with prejudice as a result of Defendants' Motion.

II. Standard(s)

A. Rule 12(b)(6)

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See FED.

R. CIV. P. 12(b)(6) ("[A] party may assert the following defenses by motion: (6) failure to state a claim upon which relief can be granted[.]"). The Federal Rules of Civil Procedure require only that the complaint provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting FED. R. CIV. P. 8(a)(2)), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007);³ see also FED. R. CIV. P. 8(a) (setting forth general pleading requirements for a complaint including providing "a short and plain statement of the claim showing that the pleader is entitled to relief").

While a plaintiff must provide the grounds of his entitlement to relief, Rule 8 does not mandate the inclusion of "detailed factual allegations" within a complaint. Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S. Ct. at 103). However, at the same time, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). "[O]nce a claim has beenstated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.

"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. (emphasis added). "Under Twombly's construction of Rule 8 . . . [a plaintiff's] complaint [must] 'nudge[] [any] claims' . . . 'across the line from conceivable to plausible.' Ibid." Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.

A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556, 127 S. Ct. at 1965).

B. Shotgun Pleadings

"The typical shotgun complaint contains several counts, each one incorporatingby 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, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). Another confusing aspect of many shotgun complaints is the practice of lumping multiple claims and/or multiple defendants together within the same count or counts. A complaint that contains shotgun characteristics make it "'virtually impossible to know which allegations of fact are intended to support which claim(s) for relief' . . . [and] does not comply with the standards of Rules 8(a) and 10(b)." LaCroix v. W. Dist. of Kentucky, 627 F. App'x 816, 818 (11th Cir. 2015), cert. dismissed sub nom. LaCroix v. U.S. Dist. Court for W. Dist. of Kentucky, 136 S. Ct. 996, 194 L. Ed. 2d 2 (2016) (quoting Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)).

Shotgun pleadings are strongly disfavored by the Eleventh Circuit. See, e.g., Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 & n.54 (11th Cir. 2008) ("The complaint is a model 'shotgun' pleading of the sort this court has been roundly, repeatedly, and consistently condemning for years, long before this lawsuit was filed."), abrogated on other grounds by Iqbal, 556 U.S. 662, 680, 129 S. Ct. 1937,1950-51, and Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974.⁴ In fact, if a defendant faced with a shotgun complaint fails to move for an order requiring repleader, the Eleventh Circuit has made it clear that the district court, "acting sua sponte, should . . . str[ike] the plaintiff's complaint, and the defendant['s] answer, and instruct[] plaintiff's counsel to file a more definite statement."Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir. 1996).

III. Analysis

A. Preliminary Considerations

Before addressing the specific claims that Defendants challenge in theirMotion, the court addresses some preliminary issues. First, as a general matter, the court finds that Plaintiffs' amended complaint violates anti-shotgun as well as several other fundamental pleading principles. See, e.g., FED. R. CIV. P. 8(a)(2) (requiring complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief"); FED. R. CIV. P. 8(d)(1) ("Each allegation must be simple, concise, and direct.").

Consequently, in repleading, Plaintiffs' counsel must study the Davis decision and the numerous cases cited therein and draft a much more definite and comprehendible pleading. Plaintiffs' claims against each Defendant must be set forth in separately numbered counts. Further, Plaintiffs' restated pleading must include only plausibly stated claims and avoid lumping any causes of action together within the same count.

Second, in deciding this Motion, Plaintiffs have objected to the court's consideration of "an endorsed note and an assignment" on the basis that Plaintiffs dispute the authenticity of those specific records. (Doc. 31 at 3 n.3); cf. also Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (When deciding a Rule 12(b)(6) motion "[a] court may consider only the complaint itself and any documents referred to in the complaint which are central to the claims. (citing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.1997) (per curiam))). Because those objected-to documents are not pivotal to the court's Rule 12(b)(6) analysis, Plaintiffs' concern about their authenticity is, at least at this stage, TERMED as MOOT.

B. Counts One and Two-Negligence and Wantonness

Count One asserts that Defendants negligently serviced Plaintiffs' loan and Count Two alleges wantonness in servicing. In any negligence action, Plaintiffs must show the prima facie elements of duty, breach of duty, causation, and damages. See, e.g., Sessions v. Nonnenmann, 842 So. 2d 649, 651 (Ala. 2002) (listing prima facie elements of negligence); DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So. 2d 454, 460 (Ala. 2008) (same).

"To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty." Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994). Further, "[t]o be actionable, that act or omission must proximately cause the injury of which the plaintiff complains." Id. (citing Smith v. Davis, 599 So. 2d 586 (Ala. 1992)).

Citing to several cases, Defendants contend that these counts are implausible because Alabama law does not recognize tort claims when the breach of duty ispremised upon a contractual agreement. (Doc. 29 at 5-6).⁵ In Vines v. Crescent Transit Co., 85 So. 2d 436 (Ala. 1955), the Supreme Court of Alabama observed that:

[A] negligent failure to perform a contract express or implied . . . is but a breach of the contract. But if in performing it, it is alleged that defendant negligently caused personal injury or property damage to plaintiff, the remedy is in tort, for it is not the breach of a contract express or implied, but the breach of an implied duty to exercise due care not to injure plaintiff or her property which is the gravamen of the action.

Id. at 440 (emphasis by underlining added); see also Barber v. Bus. Prod. Ctr., Inc., 677 So. 2d 223, 228 (Ala. 1996), overruled on other grounds by White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5 (Ala. 2009) ("However, a mere failure to perform a contractual obligation is not a tort.").

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