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Foor v. Citi Mortgage, Inc.

United States District Court, W.D. Missouri, Central Division

October 3, 2016

SYDNEY FOOR, Relator for Stephanie Foor, Plaintiff,
v.
CITI MORTGAGE, INC. et al., Defendants.

          ORDER

          DOUGLAS HARPOOL UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Progressive Casualty Insurance Company's Motion to Dismiss (Doc. 18); The Missouri Attorney General's Motion to Dismiss (Doc. 26); Defendant Citi Mortgage, Inc.'s Motion to Dismiss (Doc. 27); and Defendant Mortgage Electronic Registration System, Inc.'s Motion to Dismiss (Doc. 39). Plaintiff has filed excessive documents in this case, some of which appear to be “responses” to the pending motions to dismiss. After reviewing the numerous filings in this case, the Court finds that the pending motions to dismiss are ripe for review.

         Plaintiff has filed this pro se lawsuit against numerous defendants. Plaintiff's most recent complaint, the Second Amended Complaint, was filed on March 29, 2016 and names the following defendants: CT Corporation Services; Originator U.S. Bank; Government National Mortgage Association as Trustee for Securitized Trust Ginnie Mae Remic Trust 2008-065; Ginnie Mae; Citimortgage; Mortgage Electronic Registration System; and Does 1 through 100, Inclusive. In interpreting the numerous “pleadings” and documents filed by Plaintiff, the Court believes Plaintiff's lawsuit is based on a defective foreclosure on her property. At this time, there are four defendants who have filed Motions to Dismiss. Plaintiff has filed a Proof of Service alleging the following have been served via certified mail: Citimortgage, Inc., Stonegate Mortgage Corp., FHA/HUD, Mo Attorney General; MLLF; MERS; and Progressive Casualty Insurance. (Doc. 24). From the record it does not appear defendants Martin Leigh Law Firm, CT Corporation Services, U.S. Bank, Government National Mortgage Association, or Ginnie Mae have been served. Finally, in addition to excessive notice of filings, Plaintiff has also filed several “motions” which are addressed herein.

         STANDARD

         “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). While the Court accepts the complaint's factual allegations as true, it is not required to accept the plaintiff's legal conclusions. Ashcroft, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         The court's assessment of whether the complaint states a plausible claim for relief is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft, 556 U.S. at 679. The reviewing court must read the complaint as a whole rather than analyzing each allegation in isolation. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). With regard to a pro se complaint the Court must liberally construe the allegations and “pro se litigants are held to a lesser pleading standard than other parties.” Whitson v. Stone County Jail, 602 F.3d 920, 922 n. 1 (8th Cir.2010) (citation omitted) However, a Plaintiff must allege sufficient facts to support her claims. Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004); citing, Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.1989) (regarding a pro se plaintiff, “we will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded.”); and Cunningham v. Ray, 648 F.2d 1185, 1186 (8th Cir.1981) (“pro se litigants must set [a claim] forth in a manner which, taking the pleaded facts as true, states a claim as a matter of law.”); see also, Johnson v. Nixon, 367 F.App'x 715 (8th Cir. 2010); citing, Frey v. City of Herculaneum, 44 F.3d 667, 672 (8th Cir.1995) (complaint fell short of meeting even liberal standard for notice pleading where it was entirely conclusory and gave no idea what acts individual defendants were accused of that could result in liability).

         Further, Rule 12(b)(5) “authorizes a motion to dismiss on grounds of insufficiency of service of process.” Steelman v. Lahontan, LLC, No. 4:12-CV-206 CAS, 2013 WL 1352013, at *1 (E.D. Mo. Apr. 2, 2013). “Pursuant to Federal Rule of Civil Procedure 4, when no waiver of service has been obtained or filed, service upon a corporation may be properly effectuated by one of two ways: (1) by following the procedures prescribed for individuals under Federal Rule of Civil Procedure 4(e)(1); or (2) by “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant .” Id., see Fed.R.Civ.P. 4(h).

         ANALYSIS

         1. Progressive Casualty Insurance Company.

         Progressive moves the Court to dismiss Plaintiff's claims for failure to state a claim upon which relief can be granted. A review of the record before the Court reflects that Plaintiff's First Amended Complaint includes a handwritten reference to Progressive on the caption page. However, other than Plaintiff's handwritten reference to Progressive, the only other reference to this Defendant is when Progressive is mentioned as a payee in the documents. Further, in Plaintiff's Second Amended Complaint, (Doc. 10), the most current pleading, Plaintiff makes no reference, or allegation, against defendant Progressive. As a result, the Court finds Progressive's Motion to Dismiss is well taken and that Plaintiff has abandoned her claim against this Defendant. Therefore, Progressive shall be dismissed from this lawsuit. In addition, even if Plaintiff did not intend to drop her claim against Progressive, construing Plaintiff's claims under a liberal standard, Plaintiff's reference to Progressive in her first pleadings fails to state any claim against Progressive, and therefore would be dismissed pursuant to Rule 12(b)(6). Therefore, for the reasons stated herein, Progressive's Motion to Dismiss is GRANTED. (Doc. 18).

         2. Attorney General

         The Attorney General's Motion to Dismiss argues Plaintiff's Complaint should be dismissed for several reasons. The AG argues Plaintiff lacks standing to bring her claim; her Second Amended Complaint abandons her claim against the Attorney General; her claims are barred by Eleventh Amendment immunity; she is not entitled to injunctive relief; and she fails to state a claim upon which relief can be granted.

         A review of Plaintiff's Second Amended Complaint, along with her other complaints, does not reflect any cause of action against the Attorney General. Similar to Progressive, Plaintiff's First Amended Complaint contains a handwritten reference to the Attorney General on the caption page. However, there is no reference to the AG in Plaintiff's Second Amended Complaint. Again, Plaintiff's lawsuit concerns the alleged mishandling of a foreclosure by certain creditors. However, there are no allegations against the Attorney General in her lawsuit, and even more specifically, Plaintiff abandons reference to the Attorney General in her Second Amended Complaint. The Attorney General does not appear in Plaintiff's caption, nor in the documents attached to the “pleading.” As a result, the Court finds that Plaintiff has abandoned her claim against this Defendant. In the alternative, if Plaintiff did not intend to abandon her claim against this Defendant, Plaintiff's claim against the Attorney General would be barred by Eleventh Amendment Immunity and she has failed to state a claim upon which relief can be granted. Therefore, for the reasons stated herein, the Attorney General's Motion to Dismiss is GRANTED. (Doc. 26).

         3. ...


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