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Johnson v. Washington Mutual Bank

May 4, 2006


The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge


Before the court is defendants' motion to dismiss plaintiff's Amended Complaint purporting to allege causes of action under 42 U.S.C. § 1983 (2000); 42 U.S.C. § 1985 (2000), the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. (2000) ("RESPA"); the Truth in Lending Act ("TILA"), 15 U.S.C § 1601 et seq. (2000); the Equal Credit Opportunity Act 15 U.S.C. § 1691 et seq. (2000) ("ECOA"); and the Fourth, Fifth and Fourteenth Amendments of the United States Constitution. Pro se plaintiff, Theodore F. Johnson, seeks declaratory relief, injunctive relief, $10 million in punitive damages and $10 million in compensatory damages against defendants, Washington Mutual Bank, F.A. ("WAMU") and Melisa J. Sirovina ("Sirovina"). Defendants argue that plaintiff's Amended Complaint should be dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), or in the alternative, dismissed for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, defendants' motion is granted.

I. Background

Defendant WAMU "is a federal association that maintains offices in New York, as well as several other states." (Defs.' Mem. of Law ("Defs.' Mem.") at 5.) Sirovina is employed by WAMU as an executive liaison responsible for "customer service with respect to specific mortgage loan customers . . . ." (Sirovina Aff. ¶ 3.) Plaintiff is the owner of property located at 205 Brown Avenue, Hempstead, New York ("Property"). (Pl.'s Am. Compl. ¶¶ 4-5.)

In June 1990, plaintiff entered into a mortgage loan agreement with Midatlantic Home Mortgage Corporation ("Midatlantic"). (Defs.' Mem. at 3; Sirovina Aff. Ex. A.) Plaintiff's Property secured that mortgage. Throughout the next ten years, the loan was transferred three times. First, it was transferred from Midatlantic to Midcoast Home Mortgage ("Midcoast"), then to PNC Bank ("PNC"), and finally to defendant WAMU. (Defs.' Mem. at 3.)

In September 2003, pro se plaintiff, then 76 years old, filed this action against defendants, alleging civil rights, various general contractual and federal statutory violations. Defendants joined issue on October 24, 2003. On January 5, 2004, with the court's permission, plaintiff filed an Amended Complaint, consisting in large part of lists of various mortgage payments plaintiff made to WAMU, Midatlantic, Midcoast, and PNC. Plaintiff also makes various conclusory allegations, including that his mortgage closing was a "conspiracy and a fraud" (Pl.'s Am. Compl. ¶ 23) and that "escrow charges" made by defendants and plaintiff's former mortgage holders were "dishonest and excessive." (Pl.'s Am. Compl. ¶¶ 31, 38, 40, 53, 57-59.) Finally, plaintiff merely lists various federal statutes and constitutional amendments in a section of his complaint entitled "Jurisdiction and Venue," claiming violations thereof.

Defendants now move to dismiss the Amended Complaint for lack of subject matter jurisdiction, or in the alternative, for failure to state a claim upon which relief may be granted.

II. Discussion

A. Standard for a Motion to Dismiss

When evaluating a complaint under Fed. R. Civ. P. 12, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the non-moving party. Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). A motion to dismiss must be denied "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed. 2d 80 (1957).

Because plaintiff is a pro se litigant, the court, in deciding this motion, has construed plaintiff's papers broadly, interpreting them to raise the strongest arguments they suggest. Weixel v. Bd. of Educ. of the City of New York,287 F.3d 138, 146 (2d Cir. 2002). However, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1993).

Among those rules is Fed. R. Civ. P. 8(a), which "provides that a complaint must include a short and plain statement of the claim showing that the pleader is entitled to relief." Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002), 122 S.Ct. 992, 998, 152 L.Ed.2d 1. "Rule 8(a)'s simplified standard applies to all civil actions, with limited exceptions. Id. at 513. For example, Fed. R. Civ. P. 9(b) provides for greater particularity in all averments of fraud or mistake. Moreover, a complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 513.

B. Subject Matter Jurisdiction

Defendant alleges that this court lacks subject matter jurisdiction because no federal question is presented. (Defs.' Mem. at 2.) To defeat defendant's motion under Fed. R. Civ. P. 12(b)(1), plaintiff's complaint must state a cause of action that arises "under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331 (2000); see Wheeldin v. Wheeler, 373 U.S. 647, 649, 83 S.Ct. 1441, 1444, 10 L.Ed. 2d 605 (1963) (Federal question jurisdiction exists where "the right of petitioners to recover under their complaint will be sustained if the Constitution and the laws of the United States are given one construction and will be defeated if they are given another."). The burden is on the plaintiff to establish the court's jurisdiction over the matter. See First Capital Asset Mgmt., Inc. v. Brickellbush, 218 F. Supp. 2d 369, 378-79 (S.D.N.Y. 2002), aff'd, 385 ...

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