United States District Court, W.D. Missouri, Western Division
FERNANDO J. GAITAN, Jr., District Judge.
Currently pending before the Court is defendant Bank of America, N.A.'s ("BANA's") and Bank of New York ("BONY's") Motion to Dismiss (Doc. # 3) Plaintiff's Motion to Strike (Doc. # 7), defendant SouthLaw P.C. ("South's) Motion to Dismiss (Doc. # 9), Plaintiff's Motion to Remand (Doc. # 13), BANA and BONY's Motion to Strike Amended Complaint (Doc. # 18), SouthLaw's Motion to Join BANA and BONY's Motion to Strike (Doc. # 19), plaintiff's Motion to Compel Discovery (Docs. # 21, 22), Plaintiff's Motion to Amend (Doc. # 27), plaintiff's Motion for a Hearing (Doc. # 28), plaintiff's Motion for a Protective Order (Doc. # 32), defendant's Motion for Extension of Time to Respond to Protective Order (Doc. # 44), Defendant's Motion to Stay Discovery Pending Ruling on Motion to Dismiss (Doc. # 48), Plaintiff's Motions to Compel (Docs. 51, 52, 53, 62) and Plaintiff's Motion to Strike Motion to Stay (Doc. # 54).
On December 16, 2014, plaintiff filed a petition in Jackson County Circuit Court to enjoin non-judicial foreclosure of her property located at 13128 Ashland Avenue, Grandview, Missouri. In the petition, plaintiff named BONY, BANA, South & Associates, P.C. and Corelogic as defendants. In her original petition, plaintiff asserted that the defendants could not produce Proof of Claim to support the non-judicial foreclosure proceedings. Plaintiff alleged that the mortgage holder sold the original note and failed to give credit to plaintiff's account. Plaintiff also alleged that the defendants did not own the mortgage, mortgage note or any security agreements and did not have proper proof of claim. BONY was served on February 3, 2015, BANA was served with the petition on February 5, 2015. Defendants BANA and BONY removed the case to this Court on March 5, 2015. In their Notice of Removal, defendants state that the Court has diversity jurisdiction, because Plaintiff is a resident of Kansas, BANA is a federally chartered bank located in North Carolina, BONY is a Delaware corporation with its principal place of business in New York. Defendants argue that even though South & Associates is a Missouri company, its citizenship should be disregarded because it was fraudulently joined. Additionally, defendants state that the amount in controversy is met because plaintiff executed a Deed of Trust in the amount of $97, 750.00.
To survive a motion to dismiss under 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A pleading that merely pleads "labels and conclusions" or a "formulaic recitation" of the elements of a cause of action, or "naked assertions" devoid of "further factual enhancement" will not suffice. Id. (quoting Twombly). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Under Fed.R.Civ.P. 12(b)(6) we must accept the plaintiff's factual allegations as true and grant all reasonable inferences in the plaintiff's favor. Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005).
A. Defendants' Motions to Dismiss/Defendants' Motion to Strike Amended Complaint/Plaintiff's Motion to Amend
Defendants move to dismiss plaintiff's petition arguing that plaintiff has failed to plead any facts to support her claims, she has failed to plead a wrongful foreclosure claim, she cannot establish a wrongful foreclosure claim seeking either damages or equitable relief and neither BANA nor BONY were required to present the original promissory note prior to the foreclosure sale. In response, plaintiff states that she had "clearly plead Declaratory Judgment, Wrongful Foreclosure, Abuse of Process and Negligent Misrepresentation, all valid causes of action against Defendants in her Amended Complaint filed March 5, 2015." Plaintiff then attached a copy of the Amended Complaint to her suggestions in opposition. In reply, defendants state that the Amended Complaint was filed in Jackson County Circuit Court on the same day as the case was removed to federal court. They state that they had not been served with this Amended Complaint at the time the case was removed, so the Amended Complaint is not properly before the Court. However, they indicate that if the Court is inclined to consider the Amended Complaint, they reserve the right to file a supplemental motion to dismiss to address any new claims presented.
On March 31, 2015, plaintiff filed an Amended Complaint with this Court. Defendants' filed a Motion to Strike the Amended Complaint, arguing that pursuant to Fed.R.Civ.P. 15(a)(1), a party is allowed to amend its pleading "once as a matter of course within (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e) or (f), whichever is earlier." BONY states that it was served with plaintiff's petition on February 3, 2015 and BANA was served on February 5, 2015. Thus, pursuant to the first clause of Fed.R.Civ.P. 15(a)(1), they state that plaintiff had until February 24, 2015 to amend her petition.
Plaintiff states that she filed her Amended Complaint in Jackson County Circuit Court on March 5, 2015, prior to defendants removing the case to this Court. Plaintiff states that she filed this Amended Complaint because at the time she filed her initial petition, she did not realize that the sale of the property had already taken place at the time of the filing of her petition. Plaintiff states that she agrees that her initial petition (to enjoin non-judicial foreclosure) is not actionable and that is why she filed an Amended Petition - to reflect that the house had already been sold. On April 22, 2015, plaintiff filed a Motion for Leave to file an Amended Petition. The defendants filed no opposition to this motion.
The Court disagrees with defendants that plaintiff's Amended Complaint was untimely filed. Fed.R.Civ.P. 15(a) states in part:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e) or (f), whichever is earlier.
The language "whichever is earlier" thus applies only to the language in subsection (b), so plaintiff could have amended her pleading within 21 days after service of a responsive pleading or 21 days after service of a motion to dismiss. In this case, BANA and BONY filed a Rule 12(b)(6) motion to dismiss on March 12, 2015 and South filed a Rule 12(b)(6) motion to dismiss on March 20, 2015, thus, adding 21 days to the earliest date a motion to dismiss was filed, means that plaintiff had until April 2, 2015 to file her Amended Petition. Plaintiff filed her Amended Petition on March 31, 2015. Therefore, the Court finds that the Amended Petition was timely filed.
Accordingly, the Court hereby DENIES BANA and BONY's Motions to Dismiss (Doc. # 3) and South's Motion to Dismiss (Doc. # 9), as these motions were based on plaintiff's initial petition and not on the Amended Petition. Defendants shall have until July 31, ...