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Doss v. The Bank of New York Mellon

United States District Court, M.D. Florida, Tampa Division

November 20, 2017

SURGRET URANIA DOSS, Plaintiff,
v.
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWALT, INC., Defendants.

          ORDER

          JAMES D. WHITTEMORE, UNITED-STATES DISTRICT JUDGE.

         BEFORE THE COURT are six motions to dismiss by the Defendants.[1] (Dkts. 35, 36, 47, 51, 58, 59). Plaintiff filed an opposition to Bank of New York Mellon's ("BoNYM") and New Penn Financial's Motion to Dismiss (Dkt. 41). The time for him to respond to the remaining motions has passed. Those motions are deemed unopposed (Dkts. 36, 47, 51, 58, 59). See M.D. Fla. R. 3.01(b).

BACKGROUND

         Plaintiff filed this lawsuit seeking emergency injunctive relief to reverse his eviction from a property foreclosed by BoNYM in Hillsborough County Circuit Court ("the first foreclosure"). Plaintiff was not a party to the first foreclosure. He acquired the property by quit claim deed after BoNYM filed the first foreclosure, but before final judgment was entered and the property was sold at a public auction.[2] After final judgment was entered in the first foreclosure and the property was again sold at public auction, Plaintiff was evicted. He sought emergency injunctive relief to enjoin "all local officials" from accessing the property and to return the property to him. That request was denied and any independent claims he attempted to bring were not reviewed . (Dkt. 3). He filed an amended complaint seeking emergency injunctive relief to void the state court proceedings and allow him to reside on the property. (Dkt. 8). After his construed motion for injunctive relief was denied (Dkt. 9), his amended complaint was stricken as a shotgun pleading. (Dkt. 12). His second amended complaint arises from the first foreclosure action and eviction proceedings in Hillsborough County Circuit Court Case No. 15-CA-000071, of which this Court takes judicial notice.[3] (Dkt. 19).

         In Count One, he sues BoNYM, Shellpoint, and Aldridge Pite, LLP for violations of 42 U.S.C. § 1982 and § 1983. He sues Frank, Henriquez, Holder, and Chronister in Counts Two, Three, Four, and Five respectively, for violations of 42 U.S.C. §§ 1982, 1983, 1985, 1986, and breach of fiduciary duty. He sues all Defendants in Count Six for conversion.

         STANDARD

         Federal Rule of Civil Procedure 8(a)(2) requires a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." A plaintiff must allege "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In evaluating a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the relevant question is whether the allegations are sufficient to allow the plaintiff to conduct discovery in an attempt to prove the allegations, not whether the plaintiff will ultimately prevail. See Jackam v. Hosp. Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579-80 (11th Cir. 1986).

         A complaint must be dismissed pursuant to Rule 12(b)(6) if the complaint does not plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 547. "[W]hen the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " a claim is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For the purposes of a motion to dismiss, all of the factual allegations contained in the complaint must be accepted as true. Id. But, this tenet is "inapplicable to legal conclusions." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679.

         DISCUSSION

         I. COUNT ONE

         42 U.S.C. § 1983

         BoNYM, Shellpoint, and Aldridge move to dismiss the § 1983 claim contending that the allegations are insufficient to establish that these private companies engaged in state action. Plaintiff conclusively alleges that BoNYM, Shellpoint, and Aldridge are state actors. And, he alleges that BoNYM and Shellpoint, by filing the foreclosure action in Hillsborough County Circuit Court, and Aldridge, by filing a writ of possession, "owed a duty to notify [him] of the pending procedures as they might affect substantive due process rights and operate to avoid noticing [him]..." (Dkt. 19 156).

         To state a § 1983 claim, at plaintiff must allege that he was '"deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law. Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from it sreach merely private conduct, no matter how discriminatory or wrongful."' Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276-77 (11th Cir. 2003) (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50(1999)).

         The primary tests to determine whether a state action exists are the public function test, the state compulsion test, and the nexus/joint action test. Focus on the Family v. Pinellas Suncoast Transit Auth, 344 F.3d 1263, 1277 (11th Cir. 2003) (citation omitted). The public function test applies where private actors are "performing functions 'traditionally the exclusive prerogative of the state.'" Id. (citation omitted). The state compulsion test applies where the "the government 'has coerced or at least significantly encouraged the action alleged to violate the Constitution.'" Id. (citation omitted). And, the nexus/joint action test is where '"the state has so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise."' Id. (citation omitted, alteration in original).

         Plaintiff fails to allege any facts to support his allegaton that BoNYM, Shellpoint, and Aldrige are state actors by virtue of using the state court legal process. Indeed, "one who has obtained a state court order or judgment is not engaged in state action merely because it used the state court legal process."[4] Cobb v. Georgia Power Co., 757 F.2d 1248, 1251 (11th Cir.1985); see Shuler v. Swatek, 465 Fed.Appx. 900, 903 (11th Cir. 2012) (judgment creditor who caused sheriffs sale of judgment debtor's house was not a state actor). Nor is Aldridge a state actor by virtue of having filed a writ of possession.[5] Accordingly, Plaintiffs § 1983 claims against BoNYM, Shellpoint, and Aldridge will be dismissed with prejudice, since amending would be futile.

         42 U.S.C. § 1982

         Plaintiff alleges § 1982 violations against BoNYM, Shellpoint, and Aldridge in Count One. To state a prima facie case under § 1982, he must allege membership in a protected class, discriminatory intent, and interference with rights or benefits connected with the ownership of property. Daniels v. Dillard's, Inc.,373 F.3d 885, 887 (8th Cir. 2004). Plaintiff does not allege that he is a member of a protected class or that any Defendant ...


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