UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARTHA A. AKERS, :
:
Plaintiff, : Civil Action No.: 09-0724 (RMU)
:
v. : Re Document Nos.: 8, 14, 16
:
BEAL BANK et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART THE DEFENDANTS’ MOTION TO DISMISS;
GRANTING THE DEFENDANTS’ MOTION TO STRIKE THE PLAINTIFF’S SUPPLEMENT TO THE
COMPLAINT; DENYING THE PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
I. INTRODUCTION
This matter comes before the court on the defendants’ motions to dismiss the complaint
and to strike the plaintiff’s supplement to the complaint, as well as the plaintiff’s motion for a
preliminary injunction. The pro se plaintiff has asserted claims for breach of contract and
various torts in connection with a parcel of real estate in the District of Columbia that she
formerly owned. The defendants have moved to dismiss the complaint under Federal Rules of
Civil Procedure 8 and 12(b)(6). For the reasons discussed below, the court grants in part and
denies in part that motion. The court also grants the defendants’ motion to strike the plaintiff’s
supplement to the complaint and denies the plaintiff’s motion for a preliminary injunction.
II. FACTUAL & PROCEDURAL BACKGROUND
It appears from the complaint that the plaintiff secured mortgage financing through the
defendants to purchase a parcel of real estate at 8165 East Beach Drive, Northwest, in the District
of Columbia. See Compl. ¶ 2. The plaintiff allegedly paid money into an escrow account on a
monthly basis to cover payments for real property taxes and insurance. See id. ¶¶ 3-4, 8.
According to the plaintiff, the defendants instructed the District of Columbia’s Office of Tax and
Revenue to send “all papers served or required to be served regarding [the East Beach Drive]
property to . . . Countrywide Home Loans” (“Countrywide”) in Plano, Texas. Id. ¶ 5. Because
such notices were sent directly to Countrywide, the plaintiff received no information from the
District of Columbia pertaining to real property tax assessments from 2004 to 2009. Id. The
plaintiff allegedly had no opportunity to challenge the assessments, and, as a result, the
defendants “paid unlawful taxes levied by [the] District of Columbia” for those tax years. Id. ¶¶
5, 9. For reasons that are not clearly articulated in the complaint, the defendants’ actions
negatively affected the plaintiff’s subsequent bankruptcy proceedings. See id. The plaintiff
brings breach of contract and tort claims against the defendants and demands $2.7 million in
damages. See generally id. The defendants have moved to dismiss the complaint, see generally
Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), and to strike the “Supplement to Complaint” filed by the
plaintiff on August 14, 2009, see generally Defs.’ Mot. to Strike.1 In addition, the plaintiff has
moved for a preliminary injunction. See generally Pl.’s Mot. The court turns now to the
applicable legal standards and the parties’ arguments.
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If the plaintiff wishes to amend her complaint, she may do so only as provided in Rules 8 through
11 and 15 of the Federal Rules of Civil Procedure and Local Civil Rules 7 and 15.1.
Accordingly, the court grants the defendants’ motion to strike the plaintiff’s “Supplement to
Complaint.”
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III. ANALYSIS
A. The Court Grants in Part and Denies in Part the Defendants’ Motion to Dismiss
1. Legal Standard for Dismissal Under Rule 8
Federal Rule of Civil Procedure 8 sets forth the general rules of pleading. FED . R. CIV . P.
8. Under Rule 8(a), a complaint must contain “a short, plain statement of the claim showing that
the pleader is entitled to relief . . . .” FED . R. CIV . P. 8(a). In addition, Rule 8(e) requires that
“each averment of a pleading . . . be simple, concise, and direct.” FED . R. CIV . P. 8(e).
The purpose of pleading is to give an adverse party fair notice of the claim so as to permit
the party the opportunity to “file a responsive answer, prepare an adequate defense and determine
whether the doctrine of res judicata is applicable.” Prows v. Dep’t of Justice, 1991 WL 111459,
at *1 (D.D.C. June 13, 1991) (citing Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977)). The
court or opposing party must be able “to understand whether a valid claim is alleged and if so
what it is.” Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 775 (7th Cir. 1994).
2. Legal Standard for Dismissal Under Rule 12(b)(6)
The Federal Rules of Civil Procedure require that a complaint “give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S.
41, 47 (1957). “When ruling on a defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint.” Atherton v. D.C. Office of the Mayor, 567
F.3d 672, 681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)) (citations
omitted). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6)
motion, a plaintiff must offer “more than labels and conclusions” to provide “grounds” of
“entitle[ment] to relief.” Twombly, 550 U.S. at 555. “To survive a motion to dismiss, a
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complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550
U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 556). A complaint alleging facts
which are “‘merely consistent with’ a defendant’s liability, . . . ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Ashcroft, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 557) (alterations omitted).
3. The Court Grants in Part and Denies in Part the Defendants’ Motion to Dismiss
Although the plaintiff purports to bring a breach of contract claim, the defendants argue
that she “does not identify or attach the contract at issue, and [that] she does not cite the
contractual provision . . . allegedly breached.” Defs.’ Mot. at 1-2. Nor does the plaintiff
distinguish between the two defendants in her allegations. Id. at 2.
In addition to the legal standards for dismissal under Rules 8 and 12(b)(6), the court is
mindful of its obligation to construe pro se pleadings liberally. See Haines v. Kerner, 404 U.S.
519, 520 (1972). As drafted, the complaint alleges the following: the parties entered into a
contract for mortgage financing; the plaintiff made escrow payments to cover the real property
taxes and insurance costs; the defendants were obligated to pay those costs on the plaintiff’s
behalf from the funds in the escrow account, rendering the plaintiff unable to challenge the tax
assessments; the defendants erred in their payment of the taxes; and the plaintiff incurred
monetary losses as a result thereof. See generally Compl. These allegations are sufficient to put
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the defendants on notice of the plaintiff’s breach of contract claim and permit the defendants to
prepare an adequate defense. See Brown, 75 F.R.D. at 498.
There are defects in the plaintiff’s complaint, as the defendants duly note. See Defs.’
Mot. at 2-3. Specifically, Count II is erroneously labeled “Damages” and the plaintiff has failed
to distinguish between the two defendants, indicate the basis for her damages demand or specify
what provisions of the United States Bankruptcy Code and the United States Constitution she
relies on. See generally Compl. These deficiencies, however, are not fatal, and can be cured in
an amended complaint, if the plaintiff chooses to file one, or clarified during discovery.
Because the plaintiff has adequately alleged a breach of contract claim, the court denies
the defendants’ motion to dismiss that claim. The court concurs with the defendants, however,
that the complaint, as drafted, alleges no facts to support the plaintiff’s tort claims.2 See
Ashcroft, 129 S. Ct. at 1949 (noting that a complaint must contain factual allegations sufficient to
state a claim that is plausible on its face). Accordingly, the court dismisses without prejudice the
plaintiff’s claims of misrepresentation, negligence, false accusations, invasion of privacy,
personal injury and abuse of process.
B. The Court Denies the Plaintiff’s Motion for a Preliminary Injunction
The plaintiff has moved for “a preliminary injunction staying the enforcement by Beal
Bank or any assigner or purchaser of servicing rights to foreclose the mortgage (Deed of Trust)
2
Count I of the complaint, labeled “Breach of Contract,” states merely, “Defendants [sic] violation
of the Contract Agreement resulted in Breach of Contract and Intentional Personal Torts:
Misrepresentation, Negligence, False accusations, Invasion of privacy, Personal injury and abuse
of the process.” Compl. ¶ 5.
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on the entitled property 8165 East Beach Drive, N.W.[,] Washington, D.C. 20012, until after this
Court rules upon [plaintiff’s] challenge to [defendants’] right to foreclose.” Pl.’s Mot. at 1.
Injunctive relief is an extraordinary remedy, and the plaintiff bears a substantial burden to
obtain it. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). To prevail on her motion for a
preliminary injunction, the plaintiff must demonstrate “[1] that [s]he is likely to succeed on the
merits, [2] that [s]he is likely to suffer irreparable harm in the absence of preliminary relief, [3]
that the balance of equities tips in [her] favor, and [4] that an injunction is in the public interest.”
Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008) (citing Munaf v. Geren, 128
S. Ct. 2207, 2218-19 (2008)). Injunctive relief “will not be granted against something merely
feared as liable to occur at some indefinite time.” Wis. Gas Co. v. Fed. Energy Regulatory
Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985) (citing Connecticut v. Massachusetts, 282 U.S.
660, 674 (1931)). In general, “economic loss does not, in and of itself, constitute irreparable
harm.” Id.
If a party moving for injunctive relief fails to show irreparable injury, the court need not
consider the remaining factors for issuance of a preliminary injunction. CityFed Fin. Corp. v.
Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). Such harm must be imminent
and certain, and incapable of repair through legal remedies. See id. Absent from the plaintiff’s
motion is any assertion that she stands to suffer imminent harm that legal remedies cannot repair.
See generally Pl.’s Mot. Indeed, the defendants represent that, pursuant to the May 5, 2009 order
of the bankruptcy court, foreclosure on the East Beach Drive property has not yet been scheduled.
See Defs.’ Opp’n to Pl.’s Mot. (“Feig Decl.”) ¶¶ 6-7. Accordingly, the court denies the plaintiff’s
motion for injunctive relief.
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IV. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part the defendants’
motion to dismiss, grants the defendants’ motion to strike the plaintiff’s supplement to the
complaint and denies the plaintiff’s motion for a preliminary injunction. An Order consistent
with this Memorandum Opinion is separately and contemporaneously issued this 12th day of
November, 2009.
RICARDO M. URBINA
United States District Judge
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