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finding the objecting party waived her right to further judicial review because her "objections [we]re non-specific, unrelated to the dispositive portions of the Magistrate Judge's Report and Recommendation, or merely restate[d] her claims"
Summary of this case from Wilson v. McFaddenOpinion
No. 6:07-1259-HMH-BHH.
November 20, 2007
Wanda Hunt, Simpsonville, SC, Pro se.
Robert P. Wood, Rogers Townsend and Thomas, Brian C. Gambrell, Henry L. Hamilton, Hamilton and Associates, Demetri K. Koutrakos, Ian Douglas McVey, Callison Tighe and Robinson, Columbia, SC, Dowse Bradwell Rustin, IV, Rivers S. Stilwell, Nelson Mullins Riley and Scarborough, Michael J. Bogle, Clayton M. Custer, Womble Carlyle Sandridge and Rice, Greenville, SC, for Defendants.
OPINION ORDER
This matter is before the court with the Report and Recommendation of United States Magistrate Judge Bruce Howe Hendricks made in accordance with 28 U.S.C. § 636(b)(1) (2006) and Local Civil Rule 73.02 for the District of South Carolina. Wanda Hunt ("Hunt") asserts various causes of action arising from the foreclosure of her house. Magistrate Judge Hendricks recommends denying HSBC Mortgage Services, Inc. ("HSBC") and Robert Jones's ("Jones") motion to dismiss and granting the remaining defendants' motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted and rule 12(b)(1) for lack of jurisdiction over the subject matter.
The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. See Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1) (2006).
I. FACTUAL AND PROCEDURAL BACKGROUND
In her complaint, Hunt alleges that "HSBC stole $10,164.00 from [her and] foreclosed on [her] house under false pretense." (Compl.3.) The defendant Robert Jones is an employee of HSBC whom Hunt claims was involved in the misappropriation of the $10,164.00. ( Id. 4.) Attorneys from the defendant law firms Rogers, Townsend, Thomas ("RT T") and Ratchford Hamilton, LLP ("R H") participated as foreclosing attorneys. ( Id. 3.) Defendant Womble, Carlyle, Sandridge, Rice ("WCSR") represented defendant MWCC, the purchaser of Hunt's house. ( Id.)
II. REPORT AND RECOMMENDATION
Magistrate Judge Hendricks recommends dismissing defendants RT T and R H from the case because the court lacks subject matter jurisdiction over them as non-diverse defendants. (Report and Recommendation 3-5.) In addition, the Magistrate Judge recommends dismissing WCSR and MWCC because Hunt has alleged no wrongdoing against these defendants in the complaint and because these defendants neither owed nor violated any duty to Hunt. ( Id. 7-9.) Finally, the Magistrate Judge recommends denying HSBC and Jones's motion to dismiss because "the Court cannot conclude that the plaintiff has failed to plead at least some claim upon which relief could be granted against HSBC and Jones." ( Id. 9.) Further, Magistrate Judge Hendricks noted that while HSBC and Jones's argument that the Colorado River abstention doctrine should apply could have merit, these defendants failed to provide the court with the state court documents necessary to determine this issue. ( Id. 9-11.)
III. OBJECTIONS
Objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 n. 4 (4th Cir. 1984). In the absence of specific objections to the Report and Recommendation of the Magistrate Judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Hunt and Jones and HSBC filed objections to the Report and Recommendation. After review, however, the court finds that Hunt's objections are non-specific, unrelated to the dispositive portions of the Magistrate Judge's Report and Recommendation, or merely restate her claims. HSBC and Jones object to the Magistrate Judge's finding that the allegations in Hunt's complaint are sufficient to withstand a Rule 12(b)(6) motion for failure to state a claim. (Defs.' Objections 3-4.) In addition, HSBC and Jones assert that they provided the court with state court documents involved in the allegedly parallel state court proceedings and reassert their argument that the Colorado River abstention doctrine should apply to this case. ( Id. 6-10.)
IV. DISCUSSION OF LAW A. Rule 12(b)(6)
HSBC and Jones contend that Hunt's complaint should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. (Objections 3.) In Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ______, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (U.S. 2007), the United States Supreme Court recently held that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, `grounds' of his `entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." (internal citations omitted).
Under this standard, the court finds that Hunt's complaint is insufficient to withstand a motion to dismiss pursuant to Rule 12(b)(6). In the complaint, Hunt alleges that HSBC "stole $10,164.00 along with stealing my house." (Compl.4.) In addition, Hunt alleges that Jones "can't seem to find my forbearance agreement nor my $10,164.00." ( Id.) Even construing Hunt's complaint liberally, she does not present sufficient factual grounds to withstand HSBC and Jones's motion to dismiss. Hunt's complaint contains only conclusory and speculative statements that are insufficient to state a claim. See Twombly, 127 S.Ct. at 1965 ("[O]n a motion to dismiss, courts are not bound to accept as true a legal conclusion couched as a factual allegation. Factual allegations must be enough to raise a right to relief above the speculative level. . . ." (internal quotation marks and citations omitted)). Therefore, the court grants HSBC and Jones's motion to dismiss pursuant to Rule 12(b)(6).
B. Colorado River Abstention Doctrine
The Colorado River doctrine delineates when a federal court may abstain from hearing a case in deference to ongoing state proceedings. "Generally, as between state and federal courts, the rule is that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (internal quotation marks omitted). This is due to the "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." Id.
Despite the general rule, abstention is appropriate in certain limited circumstances. First, there must be parallel proceedings in state and federal court. If so, exceptional circumstances must exist to warrant abstention. In determining whether exceptional circumstances exist, the court may consider (1) whether any court has assumed jurisdiction over property, (2) "the inconvenience of the federal forum," (3) "the desirability of avoiding piecemeal litigation," and (4) "the order in which jurisdiction was obtained by the concurrent forums." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In addition, the court may consider "whether a federal question is presented in the case . . . and whether either the state or the federal suit was a contrived, defensive reaction to the other." McLaughlin v. United Va. Bank, 955 F.2d 930, 934-35 (4th Cir. 1992) (internal quotation marks and citations omitted).
"Suits are parallel if substantially the same parties litigate substantially the same issues in different forums." New Beckley Min. Corp. v. Intern'l Union, United Mine Workers of Am., 946 F.2d 1072, 1073 (4th Cir. 1991). Hunt has filed a state court action against Mortgage Electronic Registration a/k/a/ Household Finance II n/k/a/ HSBC as well as MWCC in the Greenville County Court of Common Pleas. (HSBC's Mem. Supp. Mot. Dismiss Ex. A (State Court Pleadings 2).) In that action, she has raised the same allegations and claims as in the instant action, all arising from the foreclosure of her house. While Jones is not a party to the state court action, all of Hunt's claims in the instant proceedings arise from actions he made as an employee of HSBC. (Compl. 3-4.) Further, the factual allegations in support of her claims are identical in the two actions. (HSBC's Mem. Supp. Mot. Dismiss Ex. A (State Court Pleadings 4-9).) Therefore, the court finds that the instant action and the state court action currently pending in the Greenville County Court of Common Pleas are parallel proceedings for purposes of the Colorado River doctrine.
In addition, the court finds that exceptional circumstances warrant abstention in the instant case. The original mortgage foreclosure proceeding involving Hunt's house was filed on July 24, 2004. ( Id. 2 n. 1). That action is currently pending in the South Carolina Court of Appeals. On December 29, 2006, Hunt filed the state court civil action raising the same claims as in the instant action. ( Id.) Therefore, not only were both state court actions involving Hunt's foreclosure filed first, but the foreclosure action was instituted over three years ago and has proceeded to the appellate level. In addition, South Carolina state courts have already assumed jurisdiction over Hunt's house, and will ultimately determine whether the foreclosure was proper. Further, there is no federal issue in this case and piecemeal litigation will result if this case is not dismissed. Finally, the instant action appears to be a "contrived, defensive reaction" to Hunt's frustration with her state court proceedings as the claims in this action are identical to those in her currently pending state court action, and she states in her complaint that she has "been trying to negotiate this matter for two (2) years in several courts and HSBC still denies wrongdoing." (Compl.4.) Hunt should not be allowed to pursue the instant action as a means of punishing HSBC for its defense in Hunt's pending state court actions. Therefore, the court finds Colorado River abstention appropriate in this case, and further, as stated above, finds Hunt's complaint subject to dismissal pursuant to Rule 12(b)(6). Based on the foregoing, the court adopts the Report and Recommendation in part and grants HSBC and Jones's motion to dismiss.
Therefore, it is
ORDERED that RT T's motions to dismiss, docket numbers 28 and 71, are granted. It is further
ORDERED that R H's motion to dismiss, docket number 36, is granted. It is further
ORDERED that HSBC and Jones's motion to dismiss, docket number 43, is granted. It is further
ORDERED that MWCC's motion to dismiss, docket number 49, is granted. It is further
ORDERED that WCSR's motion to dismiss, docket number 55, is granted.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
BRUCE H. HENDRICKS, United States Magistrate Judge.This matter is before the Court on the defendants' various motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) (6) [Docs. 28, 36, 43, 49, 55, 71].
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters involving litigation by individuals proceeding pro se are referred to a United States Magistrate Judge for consideration.
FACTUAL BACKGROUND
Taken in a light most favorable to her, the plaintiffs Complaint alleges that the defendant HSBC Mortgage Services Inc. foreclosed on her house under false pretenses. She also alleges that HSBC violated a forbearance agreement and "stole" money from her, which she had paid pursuant to the forbearance agreement. The defendant Robert Jones is an employee of HSBC, whom the plaintiff claims was a participant in the misappropriation of her money. The plaintiff has also implicated the defendants Rogers, Townsend Thomas LP and Ratchford Hamilton LLP in this case because they both participated as foreclosing attorneys. The defendant MWCC LLC purchased the foreclosed property. The defendant Womble Carlyle Sandridge Rice PLLC represented MWCC in that purchase. Facts related to the defendants other than HSBC are largely found in the responses of the plaintiff to the motions to dismiss and will be discussed below, to the extent they are relevant.
APPLICABLE LAW
LIBERAL CONSTRUCTION OF PRO SE COMPLAINT
The plaintiff brought this action pro se. This fact requires that her pleadings be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam). Even under this less stringent standard, however, the pro se Complaint is still subject to summary dismissal. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for her. Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
MOTION TO DISMISS STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff. Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993) (citations omitted).
DISCUSSION
I. SUBJECT MATTER JURISDICTION
Defendants Rogers, Townsend Thomas, LP ("RTT") and Rachford Hamilton LLP ("RH") must be dismissed from the case because the Court lacks subject matter jurisdiction to entertain the case as to them. As to all of the defendants in this case, the Complaint must establish some basis for jurisdiction over the subject matter of the lawsuit. That requirement is most typically met based either on the existence of a federal question or on the diversity of citizenship among the parties. See 28 U.S.C. §§ 1331, 1332. After a careful review of the Complaint, the Court concludes that neither bases is present as to RTT and RH. While all of the defendants advance this argument, for the reasons addressed below, it is only effective as to RTT and RH.
A. Federal Question
Section 1331 of the United States Code states, "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1332. The plaintiff has not specifically identified any federal law or constitutional provision upon which her claims are based. Each of the defendants in this case have emphasized this point to the Court. Even still, the plaintiff has not made any effort to clarify the federal statutory or constitutional basis for any of her claims, in response. In fact, she has wholly ignored the jurisdictional objections raised by the defendants.
The only word in the plaintiff's entire Complaint which carries even a modicum of federal connotation is the word "discrimination" included in the litany of claims listed on page 4. Notwithstanding that word, the plaintiff has not devoted, either in her Complaint or in any of the numerous responses she has filed to the pending motions to dismiss, even a single sentence or phrase describing the factual predicate justifying the inclusion of a claim entitled "discrimination." Accordingly, the Court has no basis upon which to assume that the plaintiff intended a discrimination claim pursuant to federal law. In fact, she has pled no discrimination claim whatsoever, either federal or state in nature.
Out of an abundance of caution, however, the Court has considered the factual allegations contained in the plaintiffs Complaint in relation to those federal statutory schemes which might even remotely be implicated on the facts of this case, including 42 U.S.C.A. § 1983; the Truth In Lending Act ("TILA"), 15 U.S.C.A. § 1601 et seq.; and the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. (2000). The facts and allegations of the Complaint, regarding RTT and RH, simply do not reflect the elements of those federal statutory schemes, or any other of which the Court is aware. Therefore, even assuming the Court did impute a federal quality to the word "discrimination," the plaintiff has not pled facts that if believed would entitle her to relief. She has simply pled no facts, whatsoever, concerning any specific discrimination.
B. Diversity Jurisdiction
The second possible basis for subject matter jurisdiction in this case is diversity of citizenship between the plaintiff and each of the defendants. Section 1332 of the United States Code states, "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between . . . citizens of different States." 28 U.S.C. § 1332. That statutory provision has been interpreted to require what is called "complete diversity." See Owen Equip. Erection Co. v. Kroger, 437 U.S. 365, 372-74 nn. 13-16, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). In other words, the plaintiff must be from a different state than all of the defendants which she has brought into the action. As a result, all of the defendants, in this case, have argued that the action should be dismissed as to each of them, as it is undisputed that the plaintiff and defendants RTT and RH are South Carolina residents and, therefore, non-diverse to the plaintiff. The non-diversity of RTT and RH, however, does not justify the dismissal of the other defendants who are, in fact, diverse to her.
Rogers, Townsend Thomas LP is a limited partnership existing and organized under the laws of the State of South Carolina. Rachford Hamilton LLP is a-Limited Liability Partnership existing and organized under the laws of the State of South Carolina. See Carden v. Arkoma Assoc., 494 U.S. 185, 195-96, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990) (holding that for purposes of diversity, the citizenship of a non-corporate entity is the citizenship of all of its members); Gen. Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114, 120 (4th Cir. 2004) (citizenship of an LLC is the citizenship of its members); Simmons v. J.C. Penney Corp., Inc., 2007 WL 858846, *1 (D.S.C. Mar. 19, 2007) (same). There is no dispute that at least some of the members or RTT and RH, if not all, are citizens of South Carolina.
The United States Supreme Court has stated that a party whose presence deprives the court of jurisdiction may be dropped or severed from the action pursuant to Rule 21 of the Federal Rules of Civil Procedure. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832-838, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (holding that Rule 21 authorizes courts to dismiss nondiverse defendants in order to cure jurisdictional defects, instead of the entire case); Fed.R.Civ.P. 21. Rule 21 states that "[m]isjoinder of parties is not ground for dismissal of an action" and allows parties to be "dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Fed.R.Civ.P. 21.
Concerning diversity jurisdiction and Rule 21, the Supreme Court has stated, "[I]t is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time, even after judgment has been rendered." Newman-Green, 490 U.S. at 832, 109 S.Ct. 2218. The Court stated further:
the question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether to a decree authorized by the case presented, they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them.Newman-Green, 490 U.S. at 835, 109 S.Ct. 2218, 104 L.Ed.2d 893 (quotation omitted); see also Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 572-73, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) (noting that the dismissal of a party under Rule 21 to cure a jurisdictional defect "ha[s] long been an exception to the time-of-filing rule"). This rule has been recognized by the Fourth Circuit. See Martinez v. Duke Energy Corp., 130 Fed.Appx. 629, 636 (4th Cir. 2005); Koehler v. Dodwell, 152 F.3d 304, 308 (4th Cir. 1998). Accordingly, so long as RTT and RH are dispensable parties, they can be dismissed from the case in order to cure the jurisdictional defect.
The plaintiff nor the defendants have made any argument that RTT and RH indispensable to the action. Rule 19(b) of the Federal Rules of Civil Procedure lists four factors to be considered in deciding whether a suit can proceed in the absence of an allegedly necessary party. See State of Idaho ex rel. Evans v. States of Oregon and Washington, 444 U.S. 380, 386, 100 S.Ct. 616, 62 L.Ed.2d 564 (1980). These factors are (1) the extent to which a judgment rendered in the party's absence might be prejudicial to that party or those already parties; (2) the extent to which the court could lessen or avoid such prejudice by shaping the judgment or relief; (3) the court's ability to render an adequate judgment in the party's absence; and (4) the adequacy of remedies available to the plaintiff should the suit be dismissed. Applying these factors, the Court is unaware of any reason why the absence of RHH and RT would prejudice the Court in its ability to render judgment or relief to the plaintiff against the other defendants or otherwise limit the adequacy of the remedies available to her. As stated, the parties have not offered any. Her allegations against each of the defendants is unique to them and her rights as against any one of them does not seem diminished or aggrandized, legally, by their presence together in the same suit or by their absence therefrom.
Accordingly, Rogers, Townsend Thomas PC's and Ratchford Hamilton LLP's motions to dismiss are granted because the Court lacks subject matter jurisdiction over the claims against them. The Court declines to grant the motions to dismiss of the other defendants on that basis but will consider other bases advanced.
II. OTHER DEFENDANTS
A. Womble Carlyle Sandridge and Rice PLLC and MWCC LLC
WCSR represented defendant MWCC LLC in the purchase of the plaintiffs home at the foreclosure sale. The plaintiff has not plead a single allegation of wrongdoing against WCSR in her Complaint. On that basis alone, dismissal of the case against WCSR is warranted. To be sure, however, the Court will consider the plaintiffs response to WCSR's motion to dismiss. In that response, the plaintiff does give some texture to her grievances against WCSR. Specifically, the plaintiff questions whether WCSR performed a title search of the property, which would have revealed the pendency of the plaintiffs lawsuit concerning the same. Although it is not clear from either the Complaint or the briefs in this case, the Court assumes that the pending lawsuit contested the propriety of the foreclosure. The plaintiff further argues that, to the extent a proper title search was performed, WCSR was obligated to instruct MWCC not to purchase the property as a result of the pending lawsuit.
Even taking these allegations as true and liberally construing them to be a part of the plaintiffs Complaint, which they are not, the plaintiff has failed to plead any claim against WCSR upon which relief could be granted. As a general principle, "an attorney is immune from liability to third persons arising from the performance of his professional activities as an attorney on behalf of and with the knowledge of his client." Stiles v. Onorato, 318 S.C. 297, 457 S.E.2d 601, 602 (1995) (citing Gaar v. North Myrtle Beach Realty Co., Inc., 287 S.C. 525, 339 S.E.2d 887, 889 (1986)). The purpose of the doctrine of attorney immunity is to encourage zealous representation of clients without fear of lawsuits by disgruntled opposing parties. Gaar, 339 S.E.2d at 889-90. Because a law firm normally conducts litigation solely in its professional capacity, the firm has no personal interest in the suit. Id. at 889. Thus, if an attorney offers advice to his client in good faith and without malice, he cannot be liable for injury to a third party. See id.; Buschi v. Kirven, 775 F.2d 1240, 1250 (4th Cir. 1985).
The plaintiff has not alleged any malice on the part of WCSR against her. As stated, she has alleged no interaction, relation, or encounter whatsoever with WCSR, much less any mens rea directed at the plaintiff specifically. At best, she has alleged negligence on its part, but not any negligence in regards to any duty owed to her, specifically. While MWCC might hypothetically have a professional negligence claim against WCSR for violation of some duty owed to it, the Court cannot contemplate any basis upon which the plaintiff might so complain. In fact, the Court is not even aware of any legal prohibition against MWCC purchasing the property during the pendency of the plaintiff's lawsuit, even a lawsuit about which it was aware. Commenting without deciding, MWCC could presumably purchase the property subject to all manner of lien or priority, including a lawsuit, so long as it were willing to assume the risk that another party might ultimately have a claim to the property superior to its own. Concomitantly, the plaintiff seemingly has no complaint against a party or that party's legal representation concerning the purchase of a property subject to foreclosure, even if a lawsuit is pending as to it, because her rights in the property are protected not by the forbearance of any purchaser, but by the lawsuit itself. If she prevails in the lawsuit, she would seemingly have substantial basis to go against any others claiming greater title in the property.
Of course, the plaintiff would always have an action to go after property which was hers. But, such an action is to be distinguished from what she has attempted to do in this case where she has brought a claim against MWCC simply for the purchase, itself, absent any specific judgment that the property is hers.
Regardless, the plaintiff has not pled any basis, in contract, tort, statute, or otherwise, for a duty owed her by WCSR. Even to the extent such a duty has been pled, she has further failed to plead how such a duty was violated as to her. It is worth repeating that the plaintiff has not pled any material factual allegations against WCSR in her Complaint.
For these exact same reasons, the plaintiff has failed to plead a claim upon which any relief might be granted as to MWCC. The plaintiff did not plead any wrongdoing against MWCC in her Complaint and only reiterates, in her response to MWCC's motion to dismiss, her belief that MWCC should have either performed a title search or, if it did, should have refrained from purchasing the property once the lawsuit was revealed by such a search. As with WCSR, the Court is unaware of any duty owed or violated by MWCC concerning the plaintiff. Moreover, the Court, again, has not been made aware, either by the parties or through its own effort, of any prohibition against MWCC purchasing the property subject to a pending lawsuit. The plaintiff has simply failed to allege, in her Complaint, any wrongdoing of MWCC.
B. HSBC Mortgage Services, Inc. and Robert Jones
HSBC and Robert Jones summarily contend that the Complaint fails to state a claim against them. Unlike her treatment of WCSR and MWCC, the plaintiff has directed the bulk of her allegations and earnest claims of wrongdoing at HSBC. Specifically, the plaintiff claims that HSBC (1) improperly declined a down payment made concerning a forbearance agreement; (2) stole over $10,000 of that down payment (although the check was returned); and (3) otherwise improperly foreclosed on her property. The plaintiff also claims that Jones, an employee of HSBC, had some involvement in the misappropriation of her down payment. Under the liberal pleading requirements, the Court cannot conclude that the plaintiff has failed to plead at least some claim upon which relief could be granted against HSBC and Jones, assuming that her essential allegations ultimately proved true. HSBC and Jones make no real attempt to argue to the contrary.
HSBC and Jones also argue that the Court should decline to exercise jurisdiction over the case on the basis of the Colorado River Abstention Doctrine. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The Court is well familiar with that doctrine. While the Supreme Court has noted that "generally, as between state and federal courts, the rule is that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction," Colorado River, 424 U.S. at 817, 96 S.Ct. 1236 (internal quotation marks omitted), abstention may be appropriate in certain limited circumstances, which HSBC and Jones contend exist here. Specifically, where there exist parallel federal and state suits which present "exceptional circumstances," a district court may elect to defer to the state court and its proceedings. Id. at 817-18, 96 S.Ct. 1236.
Fundamental to the application of the Colorado River doctrine, therefore, is the presence of parallel proceedings in state and federal court. "Suits are parallel if substantially the same parties litigate substantially the same issues in different forums." New Beckley Min. Corp. v. International Union, United Mine Workers of America, 946 F.2d 1072 (4th Cir. 1991). Notwithstanding the plaintiff's concession in her Complaint that she has "begun other lawsuits in [state] court dealing with the same facts involved in this action," the Court is disinclined to abstain on the record before it.
First, HSBC has not given the Court copies of the state court complaints pending against it. Second, the plaintiff's concession in her Complaint concerning her state court lawsuits is not enough for the Court, in good conscience, to confirm that the concurrent proceedings, in fact, involve "substantially the same issues." Likewise, the Court cannot take the mere assertion of HSBC and Jones, although honestly given, that the state and federal actions involve the same issues and the same parties. That is the ultimate inquiry reserved for the Court.
HSBC may have refrained from submitting such documents because the motion is one to dismiss. But the Court believes that it may look beyond the four corners of the Complaint in regards to jurisdictional issues. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995); Thigpen v. United States, 800 F.2d 393, 396 (4th Cir. 1986). It appears that the plaintiff has submitted a state court complaint against HSBC. [Doc. 87.] But, the Court has no briefing in regards to it and Robert Jones is not a named defendant in that Complaint. The Court believes it is prudent to refrain from deciding the abstention issue until such time as HSBC and Jones have submitted what they certify to be the extent of the state court litigation, which is allegedly parallel to this case in both issue and parties.
Even if the Court could conclude that the proceedings are parallel, it is premature to examine whether they present exceptional circumstances. In determining whether exceptional circumstances exist, the Court may consider (1) whether any court has assumed jurisdiction over property, (2) "the inconvenience of the federal forum," (3) "the desirability of avoiding piecemeal litigation," and (4) "the order in which jurisdiction was obtained by the concurrent forums." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Since Colorado River, the United States Supreme Court has added additional factors such as whether a federal question is presented in the case and whether either the state or the federal suit "was a contrived, defensive reaction to the other," simply constituting a "vexatious use of the federal courts." McLaughlin v. United Virginia Bank, 955 F.2d 930, 934 (4th Cir. 1992) (citing Moses, 460 U.S. at 17-18, n. 20, 23, 103 S.Ct. 927).
In regards to the first consideration, HSBC again represents that the "Courts of the State of South Carolina have already assumed jurisdiction over the res, the Plaintiff's home and will decide issues of ownership." (HSBC Mem. Supp. Mot. Dismiss at 9 [Doc. 43].) The Court, however, has no specific evidence to this end, of which it is aware.
In light of the Supreme Court's admonition that "[o]nly the clearest of justifications will warrant dismissal" under Colorado River, the Court will not recommend dismissal of the case based upon the partial record before it. The balance of considerations in an abstention case is always "heavily weighted in favor of the exercise of jurisdiction." Moses, 460 U.S. at 16, 103 S.Ct. 927.
Notwithstanding, the undisputed representations of the defendants and the admissions of the plaintiff strongly suggest that abstention might very well be warranted once the relevant information is before the Court. HSBC and Jones should be given leave to renew their motion, for the Court's review, with supplemental briefing and evidence.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, it is RECOMMENDED that the following motions to dismiss of the defendants [Docs. 28, 36, 49, 55, 71], should be GRANTED. It is further recommended that the motion to dismiss of the defendant HSBC Mortgage Services, Inc. and Robert Jones should be DENIED [Doc. 43].