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Grant v. Bank of America, N.A.

United States District Court, E.D. Missouri, Eastern Division

December 2, 2019

C. EARL GRANT, Plaintiff,
v.
BANK OF AMERICA, N.A., Defendant.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant Bank of America, N.A.'s motion to dismiss Plaintiff C. Earl Grant's second amended petition pursuant to Fed R. Civ. P. 12(b)(6). [ECF No. 11] Plaintiff opposes the motion. [ECF No. 14] For the reasons that follow, Defendant's motion is granted.

         I. Procedural and Factual Background

         The facts, as alleged in Plaintiff's second amended petition, are as follows: Plaintiff owned residential property at 2653 Bruno Avenue (“the property”) in St. Louis, Missouri. [ECF No. 7 at ¶ 1] Defendant was “the servicer, bailiff and receiver of Plaintiff's mortgage funds on” the property, and Plaintiff “relied upon [Defendant] to accurately account, assess, calculate and service his mortgage for the payment of real estate taxes.” [Id. at ¶ 3]

         Since August 2004, Plaintiff made his monthly mortgage payments, which included payment towards real estate property taxes, to Defendant. [Id. at ¶ 4] Defendant, in turn, escrowed and paid Plaintiff's annual real estate taxes for the property to the St. Louis County Collector of Revenue. [Id.] Plaintiff alleged that, from 2003 through 2016, Defendant “has negligently failed or refused to properly pay the correct amount of real estate property taxes owed by Plaintiff to the St. Louis Collector of Revenue with the result that Plaintiff has been overcharged in an amount in excess of $10, 000.” [Id. at ¶ 6] Plaintiff also alleged that Defendant published inaccurate credit reports reflecting “late and insufficient mortgage payments, ” as a result of which, he “has been unable to obtain credit, and Plaintiff has suffered damage to his reputation in the community.” [Id. at ¶¶14-15]

         In December 2018, Plaintiff filed a petition in the Circuit Court of St. Louis County against Defendant and St. Louis County (“the County”) seeking an accounting and damages. [ECF No. 1-1 at 5-8] Defendant and the County each moved to dismiss. [Id. at 19, 34-44] After a hearing, the court granted the County's motion and granted Plaintiff leave to amend the petition. [Id. at 45]

         Plaintiff filed a first amended petition against Defendant in April 2019 alleging actions for an accounting, conversion, and punitive damages. [Id. at 46-49] Defendant moved to dismiss the first amended petition for failure to state a cause of action, and the court granted the motion in part without explanation, dismissing Plaintiff's claim for punitive damages and declining to dismiss his claims for an accounting and conversion. [Id. at 50-57, 74]

         In October 2019, Plaintiff filed his second amended petition for an accounting (Count I) and defamation of credit (Count II).[1] [Id. at 91-94] Defendant removed the action to federal court pursuant to 28 U.S.C. § 1331 on the ground that the second amended petition “involves a federal question 28 U.S.C. § 1331, in that the defamation of credit claim should be brought pursuant to 15 U.S.C. § 1681 et seq., ” the Fair Credit Reporting Act (FCRA). [ECF No. 1 at ¶ 10]

         Defendant moves to dismiss Plaintiff's second amended petition for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). [ECF No. 11] More specifically, Defendant asserts that Plaintiff failed to state a claim for: (1) an accounting in Count I because “he cannot allege a fiduciary relationship between Plaintiff” and Defendant; and (2) defamation of credit in Count II because he did not allege either violations of the FCRA or that “the reporting was ever disputed to [Defendant] or the credit reporting agencies.” [Id. at ¶¶ 5, 6] In response, Plaintiff contends that the doctrine of collateral estoppel bars Defendant's motion to dismiss the accounting claim. [ECF No. 14] As to Defendant's defamation claim, Plaintiff states: “In the event the Court deems Plaintiff's claim for defamation of credit to be deficient, Plaintiff requests leave to amend.” [Id.]

         II. Legal Standard

         When ruling on a Rule 12(b)(6) motion to dismiss, the court must accept as true all of the factual allegations in the complaint, but it need not accept legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies the plausibility standard “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         III. Discussion

         A. Accounting (Count I)

         Defendant moves the Court to dismiss Plaintiff's claim for an accounting because Plaintiff “cannot allege all four elements required for this cause of action.” [ECF No. 12 at 2] In particular, Defendant challenges Plaintiff's allegations that there existed a fiduciary relationship between the parties. Plaintiff does not address Defendant's arguments. Instead, Plaintiff contends that, because Defendant previously moved the state court to dismiss the accounting claim presented in Plaintiff's first amended petition, “Defendant is barred by ...


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