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.

1 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.”

2 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,

,

at *1 (D.D.C. June 13, 1991) (citing Brown v. Califano,

(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.,

(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,

(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,

(D.C. Cir. 2009) (quoting Erickson v. Pardus,

(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

3 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal,

(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,

(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,

(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,

(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

4 the defendants on notice of the plaintiff’s breach of contract claim and permit the defendants to

prepare an adequate defense. See Brown,

.

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,

(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.

5 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,

(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.,

(2008) (citing Munaf v. Geren,

(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,

, 674 (D.C. Cir. 1985) (citing Connecticut v. Massachusetts,

(1931)). In general, “economic loss does not, in and of itself, constitute irreparable

harm.”

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,

, 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.

6 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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