United States District Court, W.D. Missouri, Western Division
FERNANDO J. GAITAN, JR. UNITED STATES DISTRICT JUDGE
pending before the Court is plaintiff's Motion for a Case
Management Conference (Doc. # 6), plaintiff's Motion to
Remand (Doc. # 7), SouthLaw, P.C.'s Motion to Dismiss
(Doc. # 11), plaintiff's Motion for Judicial Notice (Doc.
# 14), plaintiff's Motion for Default Judgment (Doc. #
16), plaintiff's Motion for Contempt Against SouthLaw
P.C. (Doc. # 18), Bank of America N.A., CWABS, Inc.,
Countrywide Financial Corporation and Countrywide Home Loans,
Inc.'s Motion to Dismiss (Doc. # 21), ), Bank of America
N.A., CWABS, Inc., Countrywide Financial Corporation and
Countrywide Home Loans, Inc.'s Motion to Strike
Plaintiff's Motion for Judicial Notice (Doc. # 23),
plaintiff's Motion for Extension of Time to File Response
to Motion to Dismiss (Doc. # 26), plaintiff's Motion for
Contempt Against Bank of New York Mellon (Doc. # 33), Bank of
America N.A., CWABS, Inc., Countrywide Financial Corporation
and Countrywide Home Loans, Inc., SouthLaw, P.C.'s Motion
to Stay Discovery (Doc. # 41), Bank of America N.A., CWABS,
Inc., Countrywide Financial Corporation and Countrywide Home
Loans, Inc., SouthLaw, P.C.'s Motion for Protective Order
(Doc. # 44), Bank of New York Mellon's Motion to Dismiss
(Doc. # 49), plaintiff's Motion for Protective Order
(Doc. # 53), SouthLaw, P.C.'s Motion for Extension of
Time to File Response (Doc. # 64) and plaintiff's Motion
for Leave to Amend (Doc. # 69).
February 15, 2005, plaintiff signed a promissory note and
deed of trust to Countrywide Home Loans, Inc. d/b/a
America's Wholesale Lender to refinance property located
at 13128 Ashland Avenue, Grandview, Missouri 64030. (Amended
Petition, ¶¶ 2, 5). On February 13, 2012,
Countrywide Financial Corporation, Countrywide Home Loans,
Inc. and CWABS, Inc. authorized Mortgage Electronic
Registration Systems, Inc., to assign the Deed of Trust on
the property to The Bank of New York Mellon. (Amended
Petition, ¶ 10). Non-judicial foreclosure of the
property occurred on December 4, 2014. (Amended Petition
¶ 16). On December 16, 2014, plaintiff filed a petition
in Jackson County Circuit Court to enjoin the foreclosure of
the property. Defendants BONY and BANA removed the case to
this Court on March 5, 2015. On December 30, 2015, the Court
dismissed plaintiff's amended petition finding that
plaintiff had failed to state any claims against the
defendants. On August 26, 2016, the Eighth Circuit affirmed
this Court's dismissal. Thirteen days later, on September
8, 2016, plaintiff filed her second petition in Jackson
County Circuit Court. In her initial petition, plaintiff
named only the Countrywide entities. On October 11, 2016,
plaintiff filed an Amended Petition, adding as defendants,
Bank of New York, Bank of America, and SouthLaw, P.C.
Defendants removed plaintiff's second petition to this
Court on October 28, 2016.
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
the defendants have filed Motions to Dismiss asserting that
plaintiff's amended petition is barred by the doctrine of
res judicata or claim preclusion. As the Court finds that
these motions are dispositive, they will be addressed
Res judicata, a Latin phrase meaning “a thing
adjudicated”, prohibits a party from bringing a
previously litigated claim. Chesterfield Village, Inc. v.
City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc
2002). The modern term is “claim preclusion.”
Id. Claim preclusion also precludes a litigant from
bringing, in a subsequent lawsuit, claims that
should have been brought in the first suit.
Id. As such, the doctrine applies to “every
point properly belonging to the subject matter of litigation
and which the parties, exercising reasonable diligence, might
have brought forward at the time.” King General
Contractors, Inc., 821 S.W.2d 495, 501 (Mo. banc 1991).
Improper splitting of claims occurs when a party sues on a
claim which arises out of the same “act, contract or
transaction” as the previously litigated claims.
Id. A court should also consider “whether the
parties, subject matter and evidence necessary to sustain the
claim are the same in both actions.” Grue v.
Hensley, 357 Mo. 592, 210 S.W.2d 7, 10 (1948). If the
claim does arise out of the same “act, contract or
transaction”, the claim is barred by the original
judgment under the doctrine of claim preclusion.
Chesterfield Village, Inc. at 319. The rule against
splitting a claim for relief serves to “prevent a
multiplicity of suits and appeals with respect to a single
cause of action, and is designed to protect defendants
against fragmented litigation, which is vexatious and
costly.” Bagsby v. Gehres, 139 S.W.3d 611, 615
Kesterson v. State Farm Fire & Cas. Co., 242
S.W.3d 712, 715-16 (Mo. banc 2008).
Citimortgage, Inc. v. Chicago Bancorp, Inc., No.
4:14-CV-01278-AGF, 2015 WL 631365 (E.D.Mo. Feb. 12, 2015),
the court stated, “[i]n diversity cases such as this,
‘federal law incorporates the rules of preclusion
applied by the State in which the rendering court sits.'
Welk v. Fed.Nat. Mortgage Ass'n., 561
Fed.App'x 577, 579 (8thCir.2014)(citing
Taylor v. Sturgell, 553 U.S. 880, 891 n.4
(2008)).” Id. at *4. The Court noted that
“[u]nder Missouri law, ‘[i]mproper splitting of
claims occurs when a party sues on a claim which arises out
of the same ‘act, contract or transaction' as the
previously litigated claims.'” Id. at *4
(quoting Kesterson, 242 S.W.3d at 716).
order to determine whether res judicata applies to a
subsequent suit, four identities must be present: “(1)
identity of the thing sued for; (2) identity of the cause of
action; (3) identity of the persons and parties to the
action; and (4) identity of the quality of the person for or
against whom the claim is made.” Roy v. MBW
Construction, Inc., 489 S.W.3d 299, 304
(Mo.App.2016)(citing King Gen. ...