UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1389
SUSAN C. MUELLER,
Plaintiff – Appellant,
v.
SPECIALIZED LOAN SERVICING, LLC, individually and as
servicing agent for HSBC Bank USA, National Association, as
trustee for the holders of the Deutsche Alt-A Securities,
Inc. Mortgage Loan Trust, Mortgage Pass-Through
Certificates Series 2007-0A4 c/o BAC, M/C: CA6-914-01-43,
Defendant – Appellee,
and
BANK OF AMERICA, N.A.,
Defendant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:15-cv-00022-NKM-JCH)
Submitted: September 30, 2016 Decided: October 18, 2016
Before TRAXLER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Susan C. Mueller, Appellant Pro Se. Jason E. Manning, S. Mohsin
Reza, TROUTMAN SANDERS, LLP, Virginia Beach, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Susan C. Mueller appeals from the district court’s order
granting Specialized Loan Servicing’s (“SLS”) motion to dismiss
for failure to state a claim. Finding that we lack jurisdiction
over this appeal, we dismiss.
An order dismissing a complaint without prejudice is not an
appealable final order if “the plaintiff could save [her] action
by merely amending [her] complaint.” Domino Sugar Corp. v.
Sugar Workers Local Union 392, 10 F.3d 1064, 1066–67 (4th Cir.
1993). In Domino Sugar, we held that if “the grounds of the
dismissal make clear that no amendment could cure the defects in
the plaintiff's case, the order dismissing the complaint is
final in fact” and therefore appealable. Id. at 1066 (quoting
Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 463
(7th Cir. 1988)). Where a district court grants a motion to
dismiss for failure to plead sufficient facts in the complaint
without prejudice, this court lacks appellate jurisdiction
because the plaintiff could amend the complaint to cure the
pleading deficiency. Goode v. Cent. VA Legal Aid Soc’y, 807
F.3d 619, 624 (4th Cir. 2015).
Here, it is somewhat unclear whether the claims against SLS
were dismissed with or without prejudice. In general, absent a
contrary intention, a dismissal for failure to state a claim is
with prejudice. See Federated Dep’t Stores, Inc. v. Moitie, 452
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U.S. 394, 399 n.3 (1981) (“The dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) is a
judgment on the merits.”); Carter v. Norfolk Cmty. Hosp. Ass’n,
761 F.2d 970, 974 (4th Cir. 1985) (“A district court’s dismissal
under Rule 12(b)(6) is, of course, with prejudice unless it
specifically orders dismissal without prejudice.”). While the
district court did not explicitly state whether the claims
against SLS were with or without prejudice, the fact that the
court did state that the contract claim (against another
Defendant) was dismissed with prejudice tends to show that the
other claims were dismissed differently. In addition, on
appeal, Mueller asserts that her claims against SLS should have
been dismissed without prejudice, and SLS contends that the
claims were, in fact, dismissed without prejudice. Moreover,
the district court’s order makes clear that more detailed
allegations of fraud or intentional infliction of emotional
distress could potentially state a claim.
Accordingly, we construe the dismissal of the claims
against SLS to be without prejudice. As such, we dismiss the
appeal for lack of jurisdiction. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
DISMISSED
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