United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Dismiss
Plaintiffs First Amended Complaint by Defendants John Ramsey;
WMAC 2013, LLC; WMAC 2014, LLC; Richard Robinson; Carlton
Black; Michael DeLuca; Chad Cooper; Invest Services, LLC;
Christiana Trust, a Division of Wilmington Savings Fund
Society, FSB; and Deed Co. LLC (collectively
"Defendants"). (ECF No. 72) Also pending is a
Motion for Summary Judgment by Defendants St. Louis County
Collector of Revenue; Ashley Greely, employee of St. Louis
County Department of Revenue; Richard Robinson, Manager of
Revenue Services as an employee of St. Louis County
Department of Revenue; and Mark Devore, Collector of Revenue
for St. Louis County Department of Revenue (collectively
"County Defendants"). (ECF No. 69) In response to
the County Defendants' motion, Plaintiff has filed a
Motion for Continuance Pursuant to Rule 56(d) of the Federal
Rules of Civil Procedure. (ECF No. 78) Upon thorough review
of the motions and related documents, the Court will grant
the Motion to Dismiss and Motion for Summary Judgment.
September 27, 2017, Plaintiff acting pro se filed a
First Amended Complaint. (ECF No. 86) Plaintiff, as the owner
of 11931 Roseview Lane, St. Louis, Missouri 63138
("Property"), failed to pay real estate taxes owed
on the Property for the years 2011, 2012, 2013, and 2014.
(County Defs.' Statement of Uncontroverted Material Facts
["SUMF"] ¶ 1, ECF No. 70) On August 24, 2014,
the Property was sold to Defendant WMAC 2014, LLC for $13,
129.00, which amount equaled the unpaid real estate taxes
owed. (Id. at ¶ 2) WMAC 2014, LLC received a
Tax Sale Certificate of Purchase for the Property on that
same date. (Id. at ¶ 3) No other person or
entity was involved in the purchase of the Property.
(Id.) On February 18, 2017, WMAC 2014, LLC filed a
Petition for Writ of Mandamus against Defendant Mark R.
Devore, the St. Louis County Collector of Revenue, seeking
the issuance and recording of a Collector's Deed for the
Property, which was then issued on May 4, 2017. (Id.
at ¶¶ 4-6) In his First Amended Complaint,
Plaintiff alleges that the Defendants violated his
constitutional rights in the sale and purchase of the
Property. Plaintiff also alleges fraud, intentional
infliction of emotional distress, an action to quiet title,
civil conspiracy, slander of title, unfair debt collection
practices, and an action for declaratory judgment.
regard to motions to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), a complaint
must be dismissed if it fails to plead "enough facts to
state a claim to relief that is plausible on its face."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007) (abrogating the "no set of facts" standard
set forth in Conley v. Gibson, 355 U.S. 41, 45- 46
(1957)). While the Supreme Court cautioned that the holding
does not require a heightened fact pleading of specifics,
"a plaintiffs obligation to provide the
'grounds' of his' entitle[ment] to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Id. at 555.
must liberally construe the complaint in the light most
favorable to the plaintiff and accept the factual allegations
as true. See Id. at 555; see also Schaaf v.
Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.
2008) (stating that in a motion to dismiss, courts accept as
true all factual allegations in the complaint); Eckert v.
Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008)
(explaining that courts should liberally construe the
complaint in the light most favorable to the plaintiff).
Further a court should not dismiss the complaint simply
because the court is doubtful that the plaintiff will be able
to prove all of the necessary factual allegations.
Twombly, 550 U.S. at 556. However, "[w]here the
allegations show on the face of the complaint there is some
insuperable bar to relief, dismissal under Rule 12(b)(6) is
appropriate." Benton v. Merrill Lynch &
Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation
omitted). Courts '"are not bound to accept as true a
legal conclusion couched as a factual allegation.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). When considering a motion
to dismiss, a court can "begin by identifying pleadings
that, because they are no more than conclusions, are not
entitled to the assumption of truth." Id. at
679. Legal conclusions must be supported by factual
allegations to survive a motion to dismiss. Id.
judgment is proper 'if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of
law.'" Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (quoting Fed.R.Civ.P.
56(c)(2)). "At the summary judgment stage, facts must be
viewed in the light most favorable to the nonmoving party
only if there is a 'genuine' dispute as to those
facts." Scott v. Harris, 550 U.S. 372, 380
(2007) (citation omitted).
moving party has the initial burden to establish the
non-existence of any genuine issue of fact that is material
to a judgment in its favor. City of Mt. Pleasant, Iowa v.
Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th
Cir. 1988); see also Torgerson, 643 F.3d at 1042. To
meet this burden, the movant must inform the district court
of the basis for the motion "and must identify
'those portions of [the record] ... which it believes
demonstrate the absence of a genuine issue of material
fact.'" Torgerson, 643 F.3d at 1042
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). When the movant meets this burden, "the
nonmovant must respond by submitting evidentiary materials
that set out 'specific facts showing that there is a
genuine issue for trial.'" Id. (quoting
Celotex, 477 U.S. at 324). The nonmoving party
"must do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). '"Where the record taken
as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for
trial.'" Ricci v. DeStefano, 557 U.S. 557,
586 (2009) (quoting Matsushita Elec, 475 U.S. at
587). Conclusory allegations are insufficient to establish a
material question of fact required to defeat summary
judgment. Boude v. City of Raymore, Missouri, 855
F.3d 930, 935 (8th Cir. 2017); Quinn v. St. Louis
Cty., 653 F.3d 745, 752 (8th Cir. 2011).
56(d) . . . authorizes a district court to defer considering
a motion for summary judgment if a party opposing the motion
'shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition.'" Chambers v. Travelers
Companies, Inc., 668 F.3d 559, 568 (8th Cir. 2012)
(quoting Fed.R.Civ.P. 56(d)). "Rule 56(d), however,
'is not a shield that can be raised to block a motion for
summary judgment without even the slightest showing by the
opposing party that his opposition is meritorious.'"
All-Am. Hose, LLC v. LaBarge Prod., Inc., No.
4:12CV215 TIA, 2013 WL 64524, at *5 (E.D. Mo. Jan. 4, 2013)
(quoting Duffy v. Wolle, 123 F.3d 1026, 1040 (8th
Cir.1997)). Merely speculating that the party moving for
summary judgment controls relevant facts is an insufficient
basis to defer consideration of a summary judgment motion.
Id. at *6.
Defendants' Motion to Dismiss
have filed a motion to dismiss Counts II through IX of
Plaintiffs First Amended Complaint for failure to state a
claim under Fed. R Civ. P. 12(b)(6). Defendants allege that
Plaintiffs complaint fails to make any factual allegations at
all and should therefore be dismissed. The Court agrees that
dismissal under Rule 12(b)(6) is warranted as to Defendants
John Ramsey; WMAC 2013, LLC; WMAC 2014, LLC; Richard
Robinson; Carlton Black; Michael DeLuca; Chad Cooper; Invest
Services, LLC; Christiana Trust, a Division of Wilmington
Savings Fund Society, FSB; and Deed Co. LLC.
Count II Fraud
Count II against Defendants John Ramsey, Richard Robinson,
Carlton Black, Michael DeLuca, Chad Cooper, and "Alter
Ego Entities," Plaintiff alleges that these named
Defendants fraudulently concealed and transferred assets to
purchase Tax Sale Certificates, including Plaintiffs
Property. To state a claim for fraud under Missouri
law, a plaintiff must allege:
"(1) a false, material representation; (2) the
speaker's knowledge of the falsity or his ignorance of
the truth; (3) the speaker's intent that the hearer act
upon the representation in a manner reasonably contemplated;
(4) the hearer's ignorance of the representation; (5) the
hearer's reliance on the truth of the representation; (6)
the hearer's right to rely thereon; and (7) the
hearer's consequent and proximately caused injury."
Kulovic v. BAC Home Loans Servicing, L.P., No.
4:10-CV-2058 CAS, 2011 WL 1483374, at *12-13 (E.D. Mo. Apr.
19, 2011) (quoting Kempton v. Dugan, 224 S.W.3d 83,
87 (Mo.Ct.App. 2007)). "When a plaintiff alleges a
defendant committed fraud, Rule 9(b) requires the plaintiff
to 'state with particularity the circumstances
constituting fraud.'" McKay v. GMAC Mortg.,
LLC, No. 4:10CV507 CDP, 2010 WL 2518590, at *2 (E.D. Mo.
June 14, 2010) (quoting Fed.R.Civ.P. 9(b)).
'"Conclusory allegations that a defendant's
conduct was fraudulent and deceptive are not sufficient to
satisfy the rule.'" Id. (quoting
Commercial Prop. v. Quality Inns Int'l, 61 F.3d
639, 644 (8th Cir. 1995)).
Plaintiff merely states conclusory allegations based on
information and belief. However, "[a]negations pleaded
on information and belief usually do not meet Rule 9(b)'s
particularity requirement." Drobnak v. Andersen
Corp.,561 F.3d 778, 783 (8th Cir. 2009). Allegations
pleaded on information and belief may satisfy Rule 9(b) only
where "the facts constituting the fraud are peculiarly
within the opposing party's knowledge." Id.
at 783-84 (citation omitted). Such allegations must be
"accompanied by a statement of facts on which the belief
is founded." Id. at 784 (citation omitted). The
Court finds that Plaintiff has failed to plead sufficient
facts to support his conclusory allegations of fraud against
Defendants John Ramsey, Richard ...