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Ramirez v. New Penn Financial, LLC

United States District Court, S.D. Texas, Houston Division

June 27, 2019

ADRIANA RAMIREZ and RODNEY RUIZ, Plaintiffs,
v.
NEW PENN FINANCIAL, LLC, et al., Defendants.

          MEMORANDUM AND RECOMMENDATION

          Nancy K. Johnson United States Magistrate Judge

         Pending before the court[1] are Defendant New Penn Financial, LLC's (“Defendant New Penn”) Motion to Dismiss (Doc. 4) and Defendant Barrett Daffin Frappier Turner & Engel, LLP's (“Barrett Daffin”) Motion to Dismiss (Doc. 6). The court has considered the motions, all other relevant filings, and the applicable law. For the reasons set forth below, the court RECOMMENDS that the motions of Defendant New Penn and Barrett Daffin be GRANTED and that the claims against Homebridge Financial be DISMISSED.

         I. Case Background

         On December 4, 2018, Plaintiffs filed a state court petition which appeared to name Shellpoint Mortgage Services, [2] Defendant New Penn, Homebridge Financial, and Barrett Daffin as defendants.[3] The petition was captioned “Notice of correction for fraud, missappropriation, forgery, and other embezzlements. As Romoval of Current trustee and Appointment of New trustee to salvage property of 11519 Sagegrove In Houston, tx 77089 that is worth $136, 000.00.”[4] The court assumes that Plaintiffs seek to avoid foreclosure of property located at 11519 Sagegrove Lane Houston, TX 77089. Attached to Plaintiffs' petition were three documents: (1) “Appointment of Full Co-Trustee”, (2) “Notice of Correction for Fraud, Theft, Forgery, and Other Crimes”, and (3) “Termination of Trust Indentures.”[5] The remainder of Plaintiffs' pleadings do not elaborate on these topics.

         Plaintiffs have only provided proof of service of process for Defendant New Penn.[6] Nonetheless, Defendant Barrett Daffin has appeared and filed a motion to dismiss. Homebridge Financial has not appeared, and the docket does not reflect proof of service.

         On January 16, 2019, Defendant New Penn properly removed the case to federal court based on diversity of citizenship and amended the notice of removal the following day.[7] Plaintiffs have not filed a motion to remand in response to Defendant New Penn's removal.

         On January 23, 2019, Defendant New Penn filed a motion to dismiss Plaintiffs' complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a claim upon which relief can be granted.[8] Defendant New Penn also pointed to Rule 9(b), contending that Plaintiffs have failed to “state with particularity the circumstances constituting the fraud.”[9] Plaintiffs have not filed a response to Defendant New Penn's motion to dismiss.

         On January 29, 2019, Barrett Daffin filed a motion to dismiss Plaintiffs' complaint under Rule 8 for failure to provide a “short and plain statement” showing that Plaintiffs are entitled to relief.[10] Barrett Daffin also cited to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and argued that, even if Plaintiffs are permitted to amend their complaint, Barrett Daffin is entitled to immunity for actions taken as Defendant New Penn's legal counsel.[11] Plaintiffs have not filed a response to Barrett Daffin's motion to dismiss.

         II. Legal Standards

         A. Rule 12(b)(6)

         The question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when all well-pleaded facts are assumed true and are viewed in the light most favorable to the plaintiff. Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5thCir. 2010). Rule 8(a)(2) “requires only a ‘short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give 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).

         A complaint need not contain “detailed factual allegations” but must include sufficient facts to indicate the plausibility of the claims asserted, raising the “right to relief above the speculative level.” Twombly, 550 U.S. at 555; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility means that the factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A plaintiff must provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. In other words, the factual allegations must allow for an inference of “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         B. Failure to Prosecute

         Rule 4 states that “[U]nless service is waived, proof of service must be made to the court.” Fed.R.Civ.P. 4(1)(1). Moreover, “If a defendant is not served within [ninety] days after the complaint is filed, the court--on motion or on its own after notice to the ...


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