United States District Court, S.D. Florida
Robert A. Heghmann, Beatrice M. Heghmann, Plaintiffs,
Bank of America, and others, Defendants.
ORDER ON THE DEFENDANTS' MOTIONS TO
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on the Defendant Bank of America,
N.A.'s motion to dismiss (ECF No. 18) and the Defendant
TD Bank, N.A.'s motion to dismiss (ECF No. 21). After a
review of the parties' submissions, the record, and the
applicable case law, the Court grants the
Defendants' motions to dismiss (ECF No. 18,
Plaintiffs, Robert Heghmann and Beatrice Heghmann, a married
couple, filed suit against Bank of America and TD
Bank. The Heghmanns allege that their action
arises out of violations of two automatic stays under 11
U.S.C. § 362(a), (k) and 11 U.S.C. § 1301, that
were in place due to their respective bankruptcy cases. (ECF
No 1 at ¶ 2.) According to the complaint, “[t]hose
creditors and citizens who violated the automatic stay and
have failed to undue the damage resulting from their
violation maintain accounts at Bank of America” and
“at T.D. Bank” (ECF No. 1 at ¶¶ 4, 6.)
The complaint fails to name the creditors who violated the
stay, state which specific bankruptcy cases are at issue,
specify when and where this conduct occurred or how the
Defendants violated the automatic stay.
considering a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), the Court
must accept all of the complaint's allegations as true,
construing them in the light most favorable to the plaintiff.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008). A pleading need only contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading
standard Rule 8 announces does not require detailed factual
allegations, but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotation omitted). A plaintiff must articulate
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
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.” Iqbal, 556 U.S. at 678. “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.”
Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. Thus, a pleading that offers
mere “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action” will not survive dismissal. See
Twombly, 550 U.S. at 555. “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.” Iqbal, 556 U.S. at
has the discretion to dismiss a complaint for failure to
comply with the pleading rules. Heard v. Nix, 170
Fed.Appx. 618, 619-20 (11th Cir. 2006). Rule 8(a)(2) of the
Federal Rules of Civil Procedure requires a complaint to
include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Here,
the complaint does not allege any facts that show how Bank of
America and TD Bank violated the automatic stay or how the
Heghmanns are entitled to relief from the Defendants. Indeed,
the complaint alleges that unnamed “creditors and
citizens” violated the automatic stay, and the only
link to the banks is that those creditors and citizens have
accounts at the banks.
Code section 362(k) provides that “an individual
injured by any willful violation of a stay provided by this
section shall recover actual damages, including the costs and
attorneys' fees, and, in the appropriate circumstances,
may recover punitive damages.” 11 U.S.C. § 362(k).
A violation of the automatic stay is willful if “the
violator (1) knew of the automatic stay and (2) intentionally
committed the violative act, regardless whether the violator
specifically intended to violate the stay.” In re
Govero, 439 B.R. 917, 921 (Bankr. S.D. Fla. 2010). The
Heghmanns have not pled facts that demonstrate that Bank of
America or TD Bank willfully violated the stay, or that they
violated the stay at all. All that is alleged is that the
unnamed violators have bank accounts with the Defendants.
These allegations are grossly insufficient.
the case of a pro se action, the court should construe the
complaint more liberally than it would formal pleadings
drafted by lawyers.” Powell v. Lennon, 914
F.2d 1459, 1463 (11th Cir. 1990). However, “[i]t is not
the duty of federal courts to try to second guess the
meanings of statements and intentions of [the plaintiff].
Rather the duty is upon the individual who asserts a [claim]
to come forth with a statement of sufficient clarity and
sufficient supporting facts to enable a court to understand
his argument and to render a decision on the matter.”
Nail v. Slayton, 353 F.Supp. 1013, 1019 (W.D. Va.
1972). Although the Court liberally construed the
Plaintiffs' claim as required by the caselaw, the
complaint still falls short of the more lenient standard
because the Plaintiffs did not include enough facts in their
complaint to enable the Court to understand their claim.
allege additional factual information in their response to
the Defendants' motion to dismiss. (ECF No. 20). This
information cannot be considered because the Court's
scope of review on a motion to dismiss is limited to the four
corners of the complaint. See St. George v. Pinellas
County, 285 F.3d 1334, 1337 (11th Cir. 2002); Valdes
v. Fisher Safety, 2012 WL 1405686, *2 (S.D. Fla. Apr.
23, 2012) (the Court cannot consider additional facts from
response to motion to dismiss that are not alleged in the
complaint). But even assuming the Court considered these new
factual allegations, for the reasons previously stated, they
do not provide the necessary factual underpinning to
successfully allege that the banks willfully violated the
the Court grants Bank of America's
motion to dismiss without prejudice (ECF No.
18), and it also grants TD
Bank's motion to dismiss without prejudice (ECF
No. 21). The clerk shall administratively