United States District Court, E.D. Missouri, Eastern Division
JULIAN L. WITENGIER and MARCELINE M. WITENGIER, Plaintiffs,
U.S. BANK N.A., et al., Defendants.
MEMORANDUM AND ORDER
E. JACKSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of defendant Antony
Catlin to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(2) and 12(b)(6). Plaintiffs have responded,
and the issues are fully briefed.
January 21, 2010, defendant U.S. Bank issued a loan to
plaintiffs for the purchase of real property, secured by a
note and deed of trust. The parties recorded the deed of
trust with the St. Louis County Recorder of Deeds on February
2, 2010. Several years later, on August 1, 2014, the parties
purportedly entered into a loan modification
contend that plaintiffs defaulted on the loan, and plaintiffs
do not dispute that claim. [Doc. #17 at 1 n.1]. Plaintiffs allege
that they contacted defendant Anthony Catlin, a U.S. Bank
employee who was assigned to help them find a solution to
their mortgage difficulties. However, Catlin did not help
them but instead referred them to SouthLaw, P.C..
September 14, 2016, defendant U.S. Bank appointed SouthLaw as
the successor trustee under the deed of trust. [Doc. #15-1].
The Recorder of Deeds filed that instrument on September 21,
2016. Id. Defendants state that on September 26,
2016, SouthLaw sent notice to plaintiffs that a trustee's
sale would take place on October 13, 2016. [Doc. #17 at 2;
Doc. #15 at 1]. That notification also allegedly identified
SouthLaw as the successor trustee. [Doc. #17 at 2]. Plaintiffs
successfully halted the foreclosure after filing for
bankruptcy. [Doc. #15 at 2].
initiated this action pro se in the Twenty-First
Judicial Circuit Court of Missouri (County of St. Louis)
after the attempted foreclosure. See [Doc. #1-1].
Defendant U.S. Bank subsequently removed the action to this
Court on the basis of diversity of citizenship jurisdiction,
28 U.S.C. § 1332. Plaintiffs are Missouri citizens and
defendants U.S. Bank and Catlin are Ohio
citizens. In the complaint, plaintiffs assert claims
of breach of contract and breach of the covenant of good
faith and fair dealing. They also assert a quiet title
base their claims on a number of alleged defects in the both
the security instruments and the attempted foreclosure
process. First, with regard to the security instruments,
plaintiffs allege that (1) they did not receive an executed
copy of the modified loan agreement, (2) Southlaw was not
properly designated as the successor trustee,  and (3) U.S. Bank
fraudulently assigned the note and concealed its
“true” holder. [Doc. #1-1 at 4, 10]. Plaintiffs
additionally contend that defendants did not provide adequate
notice of the trustee's sale. Specifically, defendants
allegedly (1) directed notice to a “doe tenant, ”
(2) sent notice fewer than twenty days before the scheduled
foreclosure sale, and (3) did not record such notice in
“official records.” Id. at 4;
see Mo. Rev. Stat. § 443.325. Furthermore,
plaintiffs claim that upon inquiry, defendants did not
provide a “single point of contact” and evaded
plaintiffs' attempts to ascertain the reinstatement
amount. Id. at 5-8. Finally, plaintiffs summarily
assert that U.S. Bank and Southlaw perpetrated “a
series of fraudulent transactions” by “modifying
loan documents, manipulating property values and making loans
that were in violation of a multiplicity of [s]tate
laws.” Id. at 9.
seeks dismissal of this action against him for lack of
personal jurisdiction. See Fed. R. Civ. P. 12(b)(2).
He also moves for dismissal for failure to state a claim upon
which relief can be granted. See Fed. R. Civ. P.
survive a motion to dismiss for lack of personal
jurisdiction, a plaintiff must plead ‘sufficient facts
to support a reasonable inference that the defendant can be
subjected to jurisdiction within the state.'”
Creative Calling Sols., Inc. v. LF Beauty Ltd., 799
F.3d 975 (8th Cir. 2015) (quoting K-V Pharm. Co. v. J.
Uriach & CIA, S.A., 648 F.3d 588, 591-92 (8th Cir.
2011)). The evidence must be viewed in a light most favorable
to the plaintiff; however, the burden does not shift to the
party challenging jurisdiction. Fastpath, Inc. v. Arbela
Techs. Corp., 760 F.3d 816, 820 (8th Cir. 2014).
jurisdiction can be specific or general. Viasystems, Inc.
v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d
589, 593 (8th Cir. 2011). “Specific jurisdiction refers
to jurisdiction over causes of action arising from or related
to a defendant's actions within the forum state, while
general jurisdiction refers to the power of a state to
adjudicate any cause of action involving a particular
defendant, regardless of where the cause of action
arose.” Miller v. Nippon Carbon Co., Ltd., 528
F.3d 1087, 1091 (8th Cir. 2008) (alterations in original)
(quoting Bell Paper Box, Inc. v. U.S. Kids, Inc., 22
F.3d 816, 819 (8th Cir. 1994)).
personal jurisdiction can be exercised by a federal court in
a diversity suit only if authorized by the forum state's
long-arm statute and permitted by the Due Process Clause of
the Fourteenth Amendment.” Fastpath, Inc., 760
F.3d at 820 (quoting Dairy Farmers of Am., Inc. v.
Bassett & Walker Int'l, Inc., 702 F.3d 472, 475
(8th Cir. 2012) (internal quotation marks omitted)). Although
some courts collapse the analysis, these inquiries are
separate. Dairy Farmers, 702 F.3d at 475 (citing
Bryant v. Smith Interior Design Grp., Inc., 310
S.W.3d 227, 231-32 (Mo. 2010) (en banc) (analyzing the
statutory and constitutional questions separately)).
“The reach of a state long arm statute is a question of
state law, ” while “the extent to ...