Sirote v. BBVA Compass Bank

857 F. Supp. 2d 1213, 2010 WL 8591330, 2010 U.S. Dist. LEXIS 144536
CourtDistrict Court, N.D. Alabama
DecidedDecember 29, 2010
DocketCivil Action No. CV-10-S-2698-NE
StatusPublished
Cited by6 cases

This text of 857 F. Supp. 2d 1213 (Sirote v. BBVA Compass Bank) is published on Counsel Stack Legal Research, covering District Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sirote v. BBVA Compass Bank, 857 F. Supp. 2d 1213, 2010 WL 8591330, 2010 U.S. Dist. LEXIS 144536 (N.D. Ala. 2010).

Opinion

MEMORANDUM OPINION AND ORDER

C. LYNWOOD SMITH, District Judge.

Plaintiff, Jerome Sirote, filed this case on October 5, 2010, against defendants BBVA Compass Bank (“Compass” or “Compass Bank”), Amy L. Shehan (“Shehan”), and Lisa D. Williams (“Williams”). The individual defendants are either employees or former employees of Compass. Plaintiffs original complaint asserted claims for violations of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., as well as state law claims for breach of contract, breach of fiduciary duty, fraud, and deceit.1

Defendants have moved to dismiss plaintiffs original complaint for failure to state a claim upon which relief can be granted.2 Plaintiff responded to the motions to dismiss,3 and also moved for leave to amend his complaint to cure some of the deficiencies alleged in the motions to dismiss.4 Plaintiff attached a proposed amended complaint to his motion for leave to amend. Defendants oppose plaintiffs motion for leave to amend, asserting that any amendment would be futile because, even as amended, plaintiffs complaint still would fail to state a claim upon which relief could be granted.5 Plaintiff then filed a motion [1215]*1215to exclude Exhibits C, D, and E to defendants’ response to plaintiffs motion for leave to amend.6 Defendants’ motions to dismiss, plaintiffs motion for leave to amend, and plaintiffs motion to strike defendants’ exhibits are presently before the court.

I. STANDARDS OF REVIEW

A. Motion to Dismiss

Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a complaint for, among other reasons, “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).7 This rule must be read together with Rule 8(a), which requires that a pleading contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While that pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 5. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations omitted). The Supreme Court elaborated this standard in its Iqbal opinion, as follows:

A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” [Twombly, 550 U.S. at 555, 127 S.Ct. at 1965]. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id., at 557, 127 S.Ct. 1955.
To survive a motion to dismiss [founded upon Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted], a complaint must contain sufficient factual matter, accepted as true, to “state a claim for relief that is plausible on its face.” Id., at 570, 127 S.Ct. 1955. A claim has facial plausibility 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., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id., at 557, 127 S.Ct. 1955 (brackets omitted).
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., [1216]*1216at 555, 127 S.Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556, 127 S.Ct. 1955. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. [Iqbal v. Hasty], 490 F.3d [143], at 157-158 [(2d Cir.2007)]. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not “show[n]” — “that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. at 679, 129 S.Ct. at 1949-50 (emphasis added).

B. Motion for Leave to Amend Complaint

Federal Rule of Civil Procedure 15 provides, in pertinent part, that “[t]he court should freely give leave [to amend a pleading] when justice so requires.” Fed. R.Civ.P. 15(a)(2).

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Cite This Page — Counsel Stack

Bluebook (online)
857 F. Supp. 2d 1213, 2010 WL 8591330, 2010 U.S. Dist. LEXIS 144536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sirote-v-bbva-compass-bank-alnd-2010.