United States District Court, W.D. Texas, Austin Division
SPARKS UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Defendant Wells Fargo
Bank, N.A. (Wells Fargo)'s Motion to Dismiss [#5],
Plaintiff Pat Schumacher (Plaintiff)'s Motion to Cure a
Defective Pleading [#11], Wells Fargo's Response [#13] in
opposition, Plaintiffs Request for Review [#12], and Wells
Fargo's Response [#14] in opposition. Having considered
the aforementioned documents, the case file as a whole, and
the applicable law, the Court enters the following opinion
case concerns real property located at 7701 Old Lockhart
Highway, Buda, Texas, 78610 (the Property). Notice of Filing
Suppl. [#4-1] Ex. A (State Court File) at 4-6. Plaintiff
purchased the Property in 2002 with a $117, 000.00 note
(Note) to Mortgage Outlet, Inc. d/b/a the Money Outlet (Money
Outlet) and executed a Deed of Trust in favor of Money Outlet
(Deed of Trust) as security for the Note (collectively, the
Mortgage). Id. at 4.
October 2015, the Property suffered damage from a
thunderstorm. Id. Plaintiff contends "[d]espite
[Plaintiff] having paid for force-placed insurance, the
Property was not repaired by Wells Fargo or the insurance
company." Id. Because the Property was only
partially inhabitable, Plaintiff stopped making payments on
the Mortgage. Id. at 4-5. Plaintiff alleges Wells
Fargo is now attempting to foreclose on the Property.
Id. at 5.
April 26, 2017, Plaintiff filed the current lawsuit against
Wells Fargo in Texas state court. Id. at 3. Wells
Fargo subsequently removed the case to this Court. Notice
Removal [#1]. Plaintiff asserts a single cause of action:
breach of contract. State Court File at 5. In particular,
Plaintiff claims she "had a valid contract with the
insurance company which was provided by Wells Fargo" and
"Wells Fargo breached the insurance contract by not
paying for the covered damage." Id. In response
to Plaintiffs allegations and before this case was removed,
the state court issued an ex parte temporary restraining
order preventing foreclosure on May 1, 2017. Id. at
filing this suit, Plaintiff previously filed another lawsuit
in Texas state court concerning the Mortgage (Lawsuit I),
attempting to prevent foreclosure on the Property.
See Mot. Dismiss [#5-1] (Lawsuit I R.). In Lawsuit
I, Plaintiff sued Wells Fargo, alleging Wells Fargo breached
"the insurance contract by not paying for the covered
damage" to the Property, which occurred as a result of a
thunderstorm in October 2015. Id. at 2-3. Following
Plaintiffs notice of nonsuit in Lawsuit I, the state court
dismissed Lawsuit I with prejudice on August 5, 2016.
Id. at 7.
Wells Fargo moves to dismiss this case for failure to state a
claim in light of the result in Lawsuit I. Wells Fargo argues
res judicata bars re-litigation of Plaintiffs claims. In
response, Plaintiff seeks to supplement her complaint.
See Mot. Cure [#11]. Plaintiff also asks this Court
to modify the state court order dismissing Lawsuit I with
prejudice. See Req. Review [#12].
Rule of Civil Procedure 8(a)(2) requires a complaint to
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). A motion under Federal Rule of Civil
Procedure 12(b)(6) asks a court to dismiss a complaint for
"failure to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, the plaintiff must plead sufficient facts to state a
claim for relief that is facially plausible. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
Twombly, 550U.S. 544, 570 (2007). "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."
Iqbal, 566 U.S. at 678. Although a plaintiffs
factual allegations need not establish that the defendant is
probably liable, they must establish more than a "sheer
possibility" a defendant has acted unlawfully.
Id. Determining plausibility is a
"context-specific task, " and must be performed in
light of a court's "judicial experience and common
sense." Id. at 679.
deciding a motion to dismiss under Rule 12(b)(6), a court
generally accepts as true all factual allegations contained
within the complaint. Leatherman v. Tarrant Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993). However, a court is not bound to accept legal
conclusions couched as factual allegations. Papasan v.
Allain, 478 U.S. 265, 286 (1986). Although all
reasonable inferences will be resolved in favor of the
plaintiff, the plaintiff must plead "specific facts, not
mere conclusory allegations." Tuchman v. DSC
Commc'ns Corp., 14F.3d 1061, 1067 (5th Cir. 1994).
In deciding a motion to dismiss, courts "must
consider" the complaint, as well as other sources such
as documents incorporated into the complaint by reference and
matters of which a court may take judicial notice.
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007).
res judicata, a final judgment on the merits of an action
precludes the parties or their privies from relitigating
issues that were or could have been raised in that
action." Oreck Direct, LLC v. Dyson, Inc., 560
F.3d 398, 401 (5th Cir. 2009) (quoting Allen v.
McCurry,449 U.S. 90, 94 (1980)). Four elements must be
met for a claim to be barred by res judicata: "(1) the
parties must be identical in the two actions; (2) the prior
judgment must have been rendered by a court of competent
jurisdiction; (3) there must be a final judgment on the
merits; and (4) the same claim or cause of action must be
involved in both cases." Id. (quoting In re
Ark-La-Tex Timber Co.,482 F.3d 319, 330 (5th Cir.
2007)). Because res judicata is an affirmative defense, ...