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Grant v. Bank of America, N.A.

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

January 8, 2020

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 Plaintiff C. Earl Grant's “Motion Pursuant to Fed R. Civ. P. 60 for Relief from Judgment.” [ECF No. 25] In his motion, Plaintiff requests the Court “set aside” its Memorandum and Order of December 2, 2019 dismissing with prejudice Plaintiff's second amended petition. Defendant Bank of America opposes the motion. [ECF No. 26]

         I. Background

         This case arises from Defendant's alleged failure “to accurately account, assess, calculate and service [Plaintiff's] mortgage for the payment of real estate taxes.” [ECF No. 7 at ¶1] In December 2018, Plaintiff filed a petition against Defendant and St. Louis County in the Circuit Court of St. Louis County seeking an accounting and damages. [ECF No. 1-1] Both defendants filed motions to dismiss, and the court dismissed Plaintiff's claims against St. Louis County and granted Plaintiff leave to amend the petition.

         Plaintiff filed a first amended petition against Defendant in April 2019 alleging actions for an accounting, conversion, and punitive damages. Defendant moved to dismiss the first amended petition for failure to state a cause of action, and the court granted the motion in part, dismissing without explanation Plaintiff's claim for punitive damages.

         In October 2019, Plaintiff filed his second amended petition for an accounting (Count I) and defamation of credit (Count II), [1] and Defendant removed the action to this Court based on federal question jurisdiction. [ECF No. 1] Defendant then moved to dismiss Plaintiff's second amended petition pursuant to Rule 12(b)(6). [ECF No. 11] As to Count I, Defendant asserted that Plaintiff could not state a claim for an accounting because a necessary element of an accounting claim is the existence of a fiduciary relationship and Missouri courts do not recognize fiduciary relationships between borrowers and lenders. In regard to Plaintiff's defamation claim, Defendant argued that it was preempted by the Fair Credit Reporting Act (FCRA) and Plaintiff did not allege the facts necessary to bring a private cause of action under that statute.

         Plaintiff filed a response to Defendant's motion to dismiss, arguing that the doctrine of collateral estoppel barred Defendant's motion to dismiss the accounting claim. [ECF No. 14] Plaintiff did not address Defendant's assertion that the parties' borrower-lender relationship did not give rise to a fiduciary duty. In regard to his defamation of credit claim, Plaintiff stated: “In the event the Court deems Plaintiff's claim for defamation of credit to be deficient, Plaintiff requests leave to amend.”

         Defendant subsequently filed a reply brief in support of its motion to dismiss Plaintiff's second amended complaint. [ECF No. 20] In its reply brief, Defendant addressed Plaintiff's collateral estoppel argument and reiterated its earlier arguments that Plaintiff failed to state claims for either an accounting or defamation of credit.

         Plaintiff then filed a document entitled “Response to Defendant's Reply in Further Support of Defendant's Motion to Dismiss Plaintiff's Second Amended Petition.” [ECF No. 22] Plaintiff's filing is construed as a sur-reply, which Plaintiff did not seek leave to file. See Local Rule 7-4.01.[2] In the sur-reply, Plaintiff re-asserted his argument that the doctrine of collateral estoppel barred Defendant's motion to dismiss his accounting claim. In regard to his credit defamation claim, Defendant wrote: “Missouri recognizes a private right of action for credit defamation. Authority for this type of suit - ‘interference with a credit expectancy['] - is found in Hoyt v. G.E. Capital Mortg. Servs., 193 S.W.3d 315, 323 (Mo. App. E.D. 2006); see also, Lee v. Wells Fargo Home Morg., 2011 WL 5025877.”

         On December 2, 2019, the Court entered a Memorandum and Order granting Defendant's motion and dismissing with prejudice Plaintiff's second amended petition. [ECF No. 23] In the Memorandum and Order, the Court rejected Plaintiff's argument that collateral estoppel barred Defendant's motion to dismiss Plaintiff's accounting claim, and it proceeded to find that Plaintiff failed to allege facts demonstrating the four elements of an accounting claim. Finally, the Court dismissed Plaintiff's defamation of credit claim because it was preempted by the FCRA and, to the extent Plaintiff intended to bring a claim under the FCRA, he failed to plead the requisite notice from a credit reporting agency.

         II. Discussion

         Plaintiff seeks relief from the Court's dismissal of the second amended petition pursuant to Fed.R.Civ.P. 60(b).[3] [ECF No. 25] Plaintiff argues that the Court erred in dismissing his: (1) claim for an accounting because the Court “failed to consider that [Defendant's role] went beyond that of a simplistic lender in a lender-borrower relationship”; and (2) claim for defamation of credit because the Court “completely ignored his [sur-reply]…and, in particular, its reference regarding the defamation claim along with citations to authorities for a private right of action[.]” Defendant counters that Plaintiff is not entitled to relief under Rule 60(b) because he merely “reargue[s] the same arguments made in the motion to dismiss and in Plaintiff's multiple responses which this Court properly rejected.” [ECF No. 26]

         Relief under “Rule 60(b) is an extraordinary remedy” and is “justified only under exceptional circumstances.” Prudential Ins. Co. of Am. v. Nat'l Park Med. Ctr., Inc., 413 F.3d 897, 903 (8th Cir. 2005) (internal quotation omitted). Plaintiff invokes Rule 60(b)'s catch-all provision, which provides: “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for…any [] reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). The Eighth Circuit has held that “[r]elief is available under Rule 60(b)(6) only where exceptional circumstances have denied the moving party a full and fair opportunity to litigate his claim and have prevented the moving party from receiving adequate redress.” Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir. 2005) (citing Atkinson v. PrudentialProp. Co., Inc., 43 F.3d 367, 373 (8th Cir. 1994)). ‚ÄúParties may not use [Rule 60(b)(6)] as a vehicle for setting forth arguments ...


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