United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion (Doc. No. 8) of
Defendant Alliant Credit Union to dismiss Plaintiff's
complaint, for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). For the reasons set forth below,
the Court will grant Defendant's motion.
complaint seeks relief for the sinking of his boat. According
to the complaint, on July 20, 2000, Plaintiff executed a
“Preferred Mortgage of Vessel” (the
“mortgage”) with respect to his boat in the
amount of $145, 000 in favor of Defendant, and on November
25, 2002, Plaintiff executed a line of credit in the amount
of $177, 000, secured by the boat, also in favor of
Defendant. The terms of the mortgage provide that
Plaintiff must maintain insurance for the boat. (Doc. No. 4-1 at
September 2, 2014, after Plaintiff failed to make payments on
his loan, Defendant issued an “Order to Repossess,
” directing its agents, PAR North America and Atlas
Creditor Services, to repossess the boat and, upon
repossession, to upload photographs of the boat to the PAR
website. However, three days later, before Defendant took
possession of the boat, Plaintiff declared bankruptcy. In a
September 5, 2014 Statement of Financial Affairs filed in the
bankruptcy court, Plaintiff declared that none of his
property had been repossessed by a creditor within the
preceding year. In re Andrew Gay, Case No.
14-47084-705, Doc. No. 1 at 34 (Bankr. E.D. Mo. Nov. 7,
September 8, 2014, Defendant sent Plaintiff a letter stating
that Defendant took possession of the boat on September 4,
2014, that Defendant intended to dispose of the boat at a
private sale after September 18, 2014, and that the boat was
currently located at the office of Defendant's agent,
Atlas Creditor Services in Joplin, Missouri. But this letter
was plainly inaccurate, as Plaintiff admits in his complaint
that the boat remained, at all relevant times, at
Plaintiff's residence in St. Charles, Missouri, docked on
the water. Plaintiff alleges that Defendant spoke with
Plaintiff by telephone on an unspecified date and indicated
that “it would take possession of the boat at
[Plaintiff's] residence, ” and that in September
2014, Defendant dispatched an agent to secure possession of
the boat but did not ultimately remove the boat from
Plaintiff's residence. (Doc. No. 4 at 2.)
October 9, 2014, Defendant filed a motion for relief from the
automatic bankruptcy stay in the bankruptcy court, in order
to allow it to enforce its right to repossess the boat. The
bankruptcy court granted Defendant's motion on November
7, 2014, holding that Defendant “may enforce its rights
against [the boat].” In re Andrew Gay, Case
No. 14-47084-705, Doc. No. 16.
did not take actions to winterize the boat and did not renew
his insurance policy for the boat because Defendant
“represented that it took possession of the boat on
September 4, 2014 and because [Plaintiff] believed that
Defendant was going to remove [the boat] from
[Plaintiff's] property in September 2014.” (Doc.
No. 4 at 4.) At some point “during the winter of
2014-2015, ” the boat began to take on water. Plaintiff
notified Defendant that the boat was taking on water and that
Defendant “needed to remove the boat from
[Plaintiff's] residence, ” but Defendant failed to
remove the boat, and the boat eventually sank in March 2015.
Id. at 3.
about August 11, 2015, Defendant issued to Plaintiff a
“Satisfaction of Mortgage” and a letter
certifying that Defendant “has no security interest in
the boat.” (Doc. No. 4-5.) The boat is currently
underwater at Plaintiff's residence.
filed his complaint in state court on August 3, 2016,
asserting promissory estoppel, violation of the Uniform
Commercial Code (“UCC”), negligent
misrepresentation, and trespass claims, all arising out of
Defendant's statements that it would repossess the boat,
Plaintiff's failure thereafter to winterize or insure the
boat, and Defendant's failure to remove the boat from
Plaintiff's residence before the boat took on water and
sank. Plaintiff seeks compensatory and punitive damages,
attorney's fees, and specific performance by Defendant to
raise and remove the boat.
removed the case to this Court, invoking the Court's
diversity jurisdiction on the basis that the parties are
citizens of different states, and that the amount in
controversy exceeds the jurisdictional minimum because the
boat was worth “at least $55, 850” prior to
sinking, the cost to raise and remove the boat is unknown but
likely high, and Plaintiff also seeks punitive damages and
motion to dismiss, Defendant argues that Plaintiff has not
adequately alleged the elements of his claims. Specifically,
Defendant contends that Plaintiff's promissory estoppel
(Count I) and negligent misrepresentation (Count III) claims
fail for lack of a sufficiently definite promise or
representation, and reasonable reliance thereon; that the UCC
(Count II) does not apply in this case; and that Plaintiff
has failed to plead a physical interference with his
property, as required to state a trespass claim (Count IV).
In response, Plaintiff argues that he has sufficiently
pleaded each element of his claims.
survive a motion to dismiss for failure to state a claim, a
plaintiff's allegations 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) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The reviewing court must accept the plaintiff's
factual allegations as true and construe them in
plaintiff's favor, but it is not required to accept the
legal conclusions the plaintiff draws from the facts alleged.
Id. at 678; Retro Television Network, Inc. v.
Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir.
2012). A court must “draw on its judicial experience
and common sense, ” and consider the plausibility ...