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Kim v. CTX Mortgage Co., LLC

United States District Court, N.D. Texas, Fort Worth Division

July 20, 2017

CHIN KIM,
v.
CTX MORTGAGE COMPANY, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE United States District Judge

         Came on for consideration the motion of defendant Conrad Consulting, LLC ("Conrad") to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Plaintiff, Chin Kim, has filed a response, and Conrad has filed a reply. Having reviewed the motion, the response, the reply, plaintiff's first amended complaint, and applicable legal authorities, the court concludes that the motion should be granted on the ground that plaintiff's first amended complaint fails to state a claim upon which relief can be granted.

         I.

         Background

         Plaintiff initiated this action on February 13, 2017 by filing an original complaint. Doc.[1] 1. After informing plaintiff converted plaintiff's that such complaint lacked sufficient facts to establish the court's subject matter jurisdiction, the court ordered plaintiff to file an amended complaint. Doc. 7. On March 8, 2017, plaintiff filed his first amended complaint. Doc. 8. Plaintiff's first amended complaint alleged a mixture of federal and state law claims against defendants, CTX Mortgage Company, LLC, John L. Matthews, as Trustee, Timothy M. Bartosh, as Trustee, Mortgage Electronic Registration Systems, Inc. (MERS), Wells Fargo Bank, N.A. ("Wells Fargo"), Craig Muirhead, as Substitute Trustee ("Muirhead"), Roger Eldard, as Agent of Buckley Madole, P.C., as Attorneys for Wells Fargo, Conrad, and Clint Burgess, in his Capacity as Constable of Precinct 7 ("Burgess"). To date, all claims and causes of action have been dismissed except for plaintiff's claims against Conrad. See Doc. 23; Doc. 48; Doc. 50; Doc. 55.

         II

         Plaintiff's Claims

         Plaintiff's remaining claims against Conrad are: (1) wrongful eviction; and (2) conversion. Plaintiff alleges that he was wrongfully evicted "because Conrad did not have standing nor a superior right to possession of the property to remove [plaintiff] from the premises." Doc. 8 at 27, ¶ 167. And, plaintiff contends that on or about February 11, 2015, Conradproperty when it "unlawfully and without authority assumed dominion and control over [plaintiff's] property . . . inconsistent with [plaintiff's] rights in this property in that [Conrad] removed said property from [plaintiff's] home, and took possession of two rifles, ammunition, miscellaneous papers, check books and credit cards." Id. at ¶ 171.

         III. Grounds of the Motion

         Conrad asserts that plaintiff's claims against it should be dismissed for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Specifically, Conrad argues that there is no supplemental jurisdiction over plaintiff's claims because such claims do not derive from the same nucleus of operative facts common to plaintiff's claims based on federal question jurisdiction. As to plaintiff's wrongful eviction claim, Conrad asserts that it had standing to seek eviction pursuant to the deed of trust. Moreover, Conrad argues that plaintiff's election to seek damages rather than challenge the validity of the trustee deed to Conrad is inconsistent with a claim for wrongful eviction. As to plaintiff's conversion claim, Conrad argues that it did not possess a duty to preserve plaintiff's personal property after it was removed and thus cannot be liable, as a matter of law, for conversion.[2]

         IV. Applicable Pleading Principles

         A. Rule 12 (b) (1)

         Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a case is properly dismissed when the court "lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (citations omitted). The court should grant a motion to dismiss pursuant to Rule 12(b) (1} "only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Id., The court may dismiss a complaint for lack of subject matter jurisdiction upon consideration of "(1} the complaint alone; (2} the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). Upon a defendant's challenge to the court's subject matter jurisdiction, "the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).

         B. Ru ...


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