United States District Court, S.D. Texas, Houston Division
OPINION AND ORDER OF DISMISSAL
MELINDA HARMON UNITED STATES DISTRICT JUDGE.
before the Court in the above referenced cause for unfair
debt collection practices under the Texas Debt Collection
Act, removed from state court on diversity jurisdiction, are
(1) Defendant Bank of America N.A.'s motion to dismiss
with prejudice all claims against it under Federal Rules of
Civil Procedure 12(b)(6) and 8(a)(instrument #4) based on
res judicata and failure to state a claim, and (2)
United States Magistrate Judge Frances Stacy's Memorandum
and Recommendation (#11) that the motion be granted.
Plaintiffs have not responded to the motion to dismiss.
Rule of Civil Procedure 8(a) states,
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the
court's jurisdiction, unless the court already has
jurisdiction, and the claim needs no new jurisdictional
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief
in the alternative or different types of relief.
the Rule's requirement of notice pleading,
“defendants in all lawsuits must be given notice of
specific claims against them.” Anderson v. U.S.
Dept. of Housing and Urban Development, 554 F.3d 525,
528 (5th Cir. 2008). While a plaintiff need not
plead specific facts, the complaint must provide “the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
If the complaint lacks facts necessary to put defendant on
notice as what conduct supports the plaintiff's claims,
the complaint is inadequate to meet the notice pleading
standard. Anderson, 554 at 528. The complaint must
not only name the laws which the defendant has allegedly
violated, but also allege facts about the conduct that
violated those laws. Id.
district court reviews a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6), it must construe the complaint in
favor of the plaintiff and take all well-pleaded facts as
true. Randall D. Wolcott, MD, PA v. Sebelius, 635
F.3d 757, 763 (5th Cir. 2011), citing Gonzalez
v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).
The plaintiff's legal conclusions are not entitled to the
same assumption. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)(“The tenet that a court must accept as true
all of the allegations contained in a complaint is
inapplicable to legal conclusions.”), citing Bell
Atlantic Corp. v. Twombly, 556 U.S. 662, 678 (2007);
Hinojosa v. U.S. Bureau of Prisons, 506 Fed.Appx.
280, 283 (5th Cir. Jan. 7, 2012).
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, . . . a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do . . . .”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)(citations omitted). “Factual allegations must be
enough to raise a right to relief above the speculative
level.” Id. at 1965, citing 5 C.
Wright & A. Miller, Federal Practice and
Procedure § 1216, pp. 235-236 (3d ed.
2004)(“[T]he pleading must contain something more . . .
than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action”).
“Twombly jettisoned the minimum notice
pleading requirement of Conley v. Gibson, 355 U.S.
41 . . . (1957)[“a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief”], and
instead required that a complaint allege enough facts to
state a claim that is plausible on its face.” St.
Germain v. Howard, 556 F.3d 261, 263 n.2 (5th
Cir. 2009), quoting In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007).
“‘A claim has facial plausibility when the
pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.'” Montoya v. FedEx Ground
Package System, Inc., 614 F.3d 145, 148 (5th
Cir. 2010), quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The plausibility standard is not akin to a
“probability requirement, ” but asks for more
than a “possibility that a defendant has acted
unlawfully.” Twombly, 550 U.S. at 556.
Dismissal is appropriate when the plaintiff fails to allege
“‘enough facts to state a claim to relief that is
plausible on its face'” and therefore fails to
“‘raise a right to relief above the speculative
level.'” Montoya, 614 F.3d at 148,
quoting Twombly, 550 U.S. at 555, 570.
under Rule 12(b)(6) is proper not only where the plaintiff
fails to plead sufficient facts to support a cognizable legal
theory, but also where the plaintiff fails to allege a
cognizable legal theory. Kjellvander v. Citicorp,
156 F.R.D. 138, 140 (S.D. Tex. 1994), citing Garrett v.
Commonwealth Mortgage Corp., 938 F.2d 591, 594
(5th Cir. 1991). “A complaint lacks an
‘arguable basis in law' if it is based on an
indisputably meritless legal theory' or a violation of a