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Bagwell v. Dimon

United States District Court, M.D. North Carolina

May 18, 2015

ONALD RICHARD BAGWELL, Plaintiff,
v.
JAMIE DIMON, MARIANNE A. LAKE, GRADY I. INGLE, ELIZABETH B. ELLS, JONATHAN BLAKE DAVIS, JAMES C. STANFORD, COUNTY OF ORANGE, STATE OF NORTH CAROLINA, BARRY JACOBS, EARL McKEE, ALICE M. GORDON, BERNADETTE PELISSIER, RENEE PRICE, PENNY RICH, BRIAN CHARLES HIATT, HEATHER HOVANEC FORD, DAVID R. FORD, JACKSON D. WICKER, NOAH H. HUFFSTETLER, III, ROE(S) NO. 1-20, JANE DOES NO. 1-49, JOHN DOES NO. 1-49, JP MORGAN CHASE & CO., JP MORGAN CHASE BANK, N.A., AND MARK DOROSIN Defendants.

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Donald Richard Bagwell ("Plaintiff"), proceeding pro se, commenced this action on June 13, 2014, claiming violations of, among other things, the Fair Credit Reporting Act ("FCRA"), the Fair Debt Collection Practices Act ("FDCPA"), and state common and statutory law arising out of a North Carolina foreclosure proceeding. (ECF No. 1.) Plaintiff filed an Amended Complaint on July 7, 2014, (ECF No. 8), and a Second Amended Complaint on August 15, 2014, (ECF No. 29). Plaintiff names the following Defendants in both his Amended Complaint and Second Amended Complaint: (1) JPMorgan Chase Bank, N.A., JPMorgan Chase & Co., and officers Jamie Dimon and Marianne A. Lake (collectively "Chase"); (2) the attorneys representing Chase in the foreclosure, Jackson D. Wicker and Noah H. Huffstetler, III (collectively "Chase Attorneys"); (3) the substitute trustees and their attorneys, Grady I. Ingle, Jonathan Blake Davis, Brian Charles Hiatt, Heather Hovanec Ford, David R. Ford, and Elizabeth B. Ells (collectively "Trustee Defendants"); (4) the State of North Carolina and the Orange County Clerk of Superior Court, James C. Stanford ("the Clerk") (collectively "State Defendants"); and (5) the County of Orange and Orange County Commissioners Barry Jacobs, Earl McKee, Mark Dorosin, Alice M. Gordon, Bernadette Pelissier, Renee Price, and Penny Rich (collectively "Orange County Defendants").

Before the Court are the following motions: (1) Chase's Rule 12(f) Motion to Strike Plaintiff['s] Second Amended Complaint or Responsive Objections to Amendment under Rule 15(a) (ECF No. 38); (2) Motions to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim filed by the Trustee Defendants, the Orange County Defendants, Chase, and the Chase Attorneys (ECF Nos. 31, 34, 36, 40); (3) the State Defendants' Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim (ECF No. 47); and (4) five Motions for Partial Summary Judgment filed by Plaintiff (ECF Nos. 65, 67, 69, 71, 73). For the reasons stated below, the Court dismisses this case in its entirety.

I. BACKGROUND

This lawsuit arises out of a state foreclosure proceeding. On or about October 19, 2000, Plaintiff acquired property located at 4131 Woodland Park Drive, Hillsborough, North Carolina ("subject property"). (ECF No. 8 ¶ 75.) On February 26, 2003, Plaintiff executed a promissory note ("Note") on the subject property in the amount of $227, 200. ( See ECF No. 37-1 at 1.) According to Plaintiff, the holder of this Note was Washington Mutual ("WaMu"). ( See ECF No. 8 ¶¶ 25, 262, 274-75.) To secure the Note, Plaintiff executed a Deed of Trust recorded on March 4, 2003, in the Orange County Registry. ( See ECF No. 37-1 at 3.) Plaintiff subsequently defaulted on the Note, and on or about April 4, 2013, the Substitute Trustees filed a notice of foreclosure, informing Plaintiff that Chase[1] planned to commence foreclosure proceedings because of his failure to make payments under the Note. ( See ECF No. 31-1.)

A hearing on the foreclosure occurred before the Clerk of Orange County on November 13, 2013. The Clerk found that Plaintiff was in default under the Note and that the Deed of Trust contained a power of sale clause authorizing Chase to foreclose and sell the subject property. ( See ECF No. 31-2 at 1.) The Clerk then entered an order permitting the Substitute Trustees to proceed with the sale of the subject property. (Id. ) Plaintiff appealed to the Orange County Superior Court, which entered an order dismissing the appeal on March 19, 2014. (ECF No. 31-3.) Plaintiff then appealed to the North Carolina Court of Appeals. (ECF No. 31-4.) Chase notes in its briefing that Plaintiff failed to timely perfect this appeal. (ECF No. 37 at 5.) This lawsuit followed.

II. MOTION TO STRIKE SECOND AMENDED COMPLAINT

As a preliminary matter, the Court must decide whether to strike the Second Amended Complaint or, in the alternative, grant Plaintiff leave to file the Second Amended Complaint. Under Rule 15(a) of the Federal Rules of Civil Procedure, a complaint can only be amended once as a matter of course. After the initial amendment, consent of the opposing party or leave of court is required for any subsequent amendments. Chase argues that the Court should strike the Second Amended Complaint because Plaintiff had previously filed a First Amended Complaint and then filed a Second Amended Complaint without leave of court and without consent of the parties. (ECF No. 39 at 3-4.) In the alternative, Chase moves the Court to deny Plaintiff leave to file the Second Amended Complaint on the grounds that it would be futile because the Second Amended Complaint largely contains the same allegations and causes of action as the Amended Complaint. ( See id. )

Whether the court should allow or deny a proposed amendment to a complaint is within the court's discretion. Foman v. Davis, 371 U.S. 178, 182 (1962). The Fourth Circuit has made clear, however, "that leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile." Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999). The futility of a proposed amendment "turns on whether the amendment would survive a Rule 12(b)(6) motion to dismiss for failure to state a claim." Wolfenden v. Long, No. 5:09-CV-00536-BR, 2010 WL 2998804, at *7 (E.D. N.C. July 26, 2010).

In reviewing Plaintiff's Second Amended Complaint, it appears that while the Second Amended Complaint asserts two additional causes of action-i.e., a second cause of action under the FDCPA and a new cause of action for breach of contract-it does not include any new allegations. ( Compare ECF No. 29, with ECF No. 8.) The new causes of action appear to be no more than restatements of allegations already made in the Amended Complaint. Because the Court concludes for the reasons outlined herein that the Amended Complaint must be dismissed for failure to state a claim under Rule 12(b)(6), and that the Second Amended Complaint would suffer the same fate if allowed, granting leave to allow the Second Amended Complaint would be futile since it would likewise not survive a Rule 12(b)(6) motion. Accordingly, the Court will deny Plaintiff leave to file the Second Amended Complaint and will consider only Plaintiff's causes of action outlined in his Amended Complaint (hereinafter "Complaint").

III. STANDARD OF REVIEW

Each Defendant has moved to dismiss Plaintiff's Complaint for failure to state a claim under Rule 12(b)(6), and the State Defendants have also moved to dismiss pursuant to Rule 12 (b)(1) for lack of subject matter jurisdiction.[2]

Subject matter jurisdiction is a threshold question that relates to the power of the court to hear a case and must be resolved before a court addresses the merits of a case. See Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479-80 (4th Cir. 2005). The court has an independent obligation to assess whether it has subject matter jurisdiction, irrespective of whether it is raised by the parties. Wye Oak Tech., Inc. v. Republic of Iraq, 666 F.3d 205, 218 (4th Cir. 2011). The court's subject matter jurisdiction is limited in that the court "possess[es] only the jurisdiction authorized... by the United States Constitution and by federal statute." United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). When subject matter jurisdiction is at issue, the court can make appropriate inquiry outside of the pleadings to ensure that it has the authority to entertain the case. Id. at 348. The burden of proving subject matter jurisdiction rests with the plaintiff, the party asserting that jurisdiction exists. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). If the plaintiff fails to prove subject matter jurisdiction, the court must dismiss the action. Vuyyuru, 555 F.3d at 347.

Under Rule 12(b)(6), "[t]o 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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although a plaintiff need only plead a short and plain statement of the claim establishing that he or she is entitled to relief, Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992), "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. A complaint must contain "sufficient allegations supporting the reasonable inference that the defendant is liable for the misconduct alleged." Harris v. SunTrust Mortg., Inc., No. 12-cv-378, 2013 WL 1120846, at *2 (M.D. N.C. Mar. 18, 2013) (citing Twombly, 550 U.S. at 555). Although courts liberally construe pro se complaints, courts do not assume the role of advocate and develop claims that are not clearly raised in the pro se complaint. Adler v. Anchor Funding Servs., LLC, No. ...


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