United States District Court, W.D. Missouri, Southern Division
DOUGLAS HARPOOL, District Judge.
Before the Court is Defendant's Motion to Dismiss Certain Counts of Complaint (Doc. 8) and Plaintiffs' Motion for Leave to File First Amended Complaint (Doc. 26). Defendant states it has no objection to Plaintiffs filing their proposed amended complaint but Defendant "reserves the right to re-assert [its] Fed.R.Civ.P. 12(b)(6) motion as to certain of the claims, a motion that is currently fully briefed and pending before the Court." The claims sought to be dismissed by Defendant are substantially the same under both the original complaint and the amended complaint. Because the Court should deny leave to amend where doing so would be futile, the Court will consider Defendant's motion to dismiss first. See Bohanna v. Hartford Life & Acc. Ins. Co., 848 F.Supp.2d 1009, 1015 (W.D. Mo. 2012) ("A motion for leave to amend should be denied on the basis of futility where the amended complaint could not withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).").
After full and careful consideration, the Court hereby GRANTS IN PART AND DENIES IN PART Defendant's motion to dismiss (Doc. 8) and GRANTS IN PART AND DENIES IN PART Plaintiffs' motion for leave to amend (Doc. 26).
On October 10, 2014, Plaintiffs filed a petition against Defendant JPMorgan Chase Bank asserting claims for disability discrimination (Count I), disability accommodation (Count II), negligence (Count III), breach of contract (Count IV), and unjust enrichment (Count V) in the context of a mortgage loan. The facts giving rise to this suit, as alleged by Plaintiffs, are as follows.
Plaintiffs financed the purchase of a home through Defendant. In June 2009, Defendant increased Plaintiffs' monthly mortgage payment from $1, 238.61 per month to $1, 684.09 per month due to a purported increase in the cost of homeowner's insurance and property taxes. Plaintiffs contacted the insurance company and county assessor and discovered that neither their insurance costs nor property tax rates had increased. In July 2010, Plaintiffs informed Defendant that their tax and insurance rates had not increased, and Plaintiffs tendered payment for the actual amount due. Defendant refused to accept the payment and returned Plaintiffs' July 2010 check. When Plaintiffs called to inquire why their July 2010 check had not been cashed, Defendant told Plaintiffs that their home loan was in default and Plaintiffs were required to pay $6, 000 plus an additional $1, 238.61 before Defendant would accept the July 2010 mortgage payment. Defendant refused, and continues to refuse, to reinstate Plaintiffs' regular monthly payment. Plaintiff Avery Hutcheson suffers from Inclusion Body Myositisa ("IBM"), has been unable to work since October 2007, and is confined to a wheelchair.
Defendant removed the case to federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a). Defendant thereafter filed an answer to Count V and moved to dismiss Counts I-IV for failure to state a claim. After full briefing on the issue of dismissal, Plaintiffs filed a motion for leave to file an amended complaint.
"To survive a motion to dismiss [under 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is facially plausible where its factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The plaintiff must plead facts that show more than a mere speculation or possibility that the defendant acted unlawfully. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Courts assess plausibility based on the allegations as a whole rather than on each allegation in isolation. Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n. 4 (8th Cir. 2010). In assessing a 12(b)(6) motion, the court may consider the complaint's allegations as well as "material attached to the complaint and materials that are public records, do not contradict the complaint, or are necessarily embraced by the pleadings." Jones v. Wells Fargo Home Mortgage, No. 4:13CV1762 CDP, 2014 WL 307055, at *2 (E.D. Mo. Jan. 28, 2014) (citing Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)).
Upon careful consideration, the Court dismisses Counts I, II, and III of Plaintiffs' Complaint and grants Plaintiffs the opportunity to file an Amended Complaint within thirty (30) days of the date of this Order.
A. Disability Discrimination and Accommodation (Counts I & II)
Plaintiffs allege Defendant discriminated against and denied reasonable and public accommodation to Plaintiffs by reason of Mr. Hutcheson's disability. Count I alleges that "Defendant increased plaintiffs mortgage payment, and refused to reinstate plaintiffs standard payment schedule, by reason of the disability of plaintiff, Avery Hutcheson." Count II alleges that Plaintiffs requested a home loan modification due to Mr. Hutcheson's disability, and Defendant wrongfully denied that request. These counts, as currently pleaded, fail to state a claim.
Plaintiffs assert these claims under the Missouri Human Rights Act ("MHRA") and/or the Americans with Disabilities Act ("ADA"). The MHRA provides a private right of action for persons discriminated against on the basis of disability in the context of real estate loans, as Plaintiffs allege here; however, Plaintiffs' claims under the MHRA fail because they are untimely. See Mo Rev. Stat. § 213.111.1 ("Any action brought in court under this section shall be filed within ninety days from the date of the commission's notification letter to the individual but no later than two years after the alleged cause occurred or its reasonable discovery by the alleged injured party."). Plaintiffs' right-to-sue letter is dated November 28, 2012 and Plaintiffs did not commence this action until October 10, 2014, which is well beyond the 90-day time limit. Moreover, Plaintiffs cannot avail themselves of the Missouri Savings Statute in this ...