United States District Court, N.D. Texas, Port Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE, UNITED STATES DISTRICT JUDGE
for consideration the motion of defendant, Citimortgage,
Inc., to dismiss amended complaint. Plaintiff, Erin Dunn, has
failed to respond to the motion, which is ripe for
ruling. The court, having considered the motion,
the record, and applicable authorities, finds that the motion
should be granted.
originally filed this action in the County Court at Law No. 2
of Tarrant County, Texas. On December 29, 2017, defendant
filed its notice of removal, bringing the action before this
court. Doc. 1. By order signed January 30, 2018, the
court ordered the parties to file amended pleadings in
keeping with the requirements of the Federal Rules of Civil
Procedure, the Local Civil Rules of this court, and the
requirements of the undersigned. Doc. 10.
February 12, 2018, plaintiff filed her amended complaint.
Doc. 11. In it, she alleges: On or about June 18, 2005,
plaintiff entered into a contract for deed with Donald Burton
("Burton") for the purchase of property at 2 04 San
Angelo Avenue, Benbrook, Texas (the "property").
Under the terms of the contract, plaintiff made payments
directly to defendant. On several occasions, plaintiff was
slow in being able to make payments and the property was
posted for foreclosure by defendant. Plaintiff dealt directly
with defendant in making payments. On March 3, 2014,
plaintiff filed for relief under the United States Bankruptcy
Code. The next day, defendant foreclosed on the property.
asserts claims for relief based on promissory estoppel,
fraud, unjust enrichment, wrongful foreclosure, and money had
and received. Plaintiff seeks a declaratory judgment and
of the Motion
urges that each of plaintiff's claims fails as a matter
of law. Defendant says that plaintiff has not pleaded, and
cannot plead, sufficient facts to state any plausible claim
against it. Therefore, defendant seeks dismissal of
plaintiff's claims with prejudice.
8(a)(2) of the Federal Rules of Civil Procedure provides, in
a general way, the applicable standard of pleading. It
requires that a complaint contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief, " Fed. R. Civ. P, 8(a)(2), "in order to
give the defendant fair notice of what the claim is and the
grounds upon which it rests, " Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and ellipsis omitted). Although a complaint need not
contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a
cause of action. Twombly, 550 U.S. at 555 & n.3.
Thus, while a court must accept all of the factual
allegations in the complaint as true, it need not credit bare
legal conclusions that are unsupported by any factual
underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) ("While legal conclusions can provide the
framework of a complaint, they must be supported by factual
to survive a motion to dismiss for failure to state a claim,
the facts pleaded must allow the court to infer that the
plaintiff's right to relief is plausible. Igbal,
556 U.S. at 678. To allege a plausible right to relief, the
facts pleaded must suggest liability; allegations that are
merely consistent with unlawful conduct are insufficient.
Id. In other words, where the facts pleaded do no
more than permit the court to infer the possibility of
misconduct, the complaint has not shown that the pleader is
entitled to relief. Id. at 679. "Determining
whether a complaint states a ...