United States District Court, D. Delaware
Andrew Gudzelak, Wilmington, Delaware, Pro Se Plaintiff.
Jeffrey S. Cianciulli, Esquire, Kenneth E. Aaron, Esquire, Susan M. Verbonitz, Esquire, Weir & Partners LLP, Wilmington, Delaware, Attorneys for Defendant.
LEONARD P. STARK, District Judge.
Plaintiff Andrew Gudzelak ("Plaintiff") filed this action on October 1, 2012, alleging mortgage fraud by Defendant PNC Bank ("Defendant"). (D.I. 1) The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Pending before the Court is Defendant's Motion to Dismiss Based upon Amended Complaint. (D.I. 14) For the reasons that follow, the Court will grant the motion.
In his original complaint, Plaintiff alleged that he entered into a mortgage agreement with Defendant on February 6, 2004, and that he was "forced into foreclosure" by Defendant, "by and thru one of its several assignees of the original mortgage, which constitutes manifest fraud." (D.I. 1 at ¶ 5) Defendant moved to dismiss the original complaint for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6) or, alternatively, for a more definite statement pursuant to Fed.R.Civ.P. 12(e). Plaintiff responded with a more definite statement (D.I. 6), wherein he invoked the Fraud Enforcement and Recovery Act of 2009 ("FERA"), Pub. L. No. 111-21, 123 Stat. 1617 (2009). In addition to mortgage fraud, he stated that Defendant had engaged in security fraud pursuant to 18 U.S.C. § 1348(2). Plaintiff also referred to a case brought by the United States of America under the False Claims Act ("FCA"), 31 U.S.C. § 3729, captioned United States v. Deutsche Bank, A.G., Civ. No. 11-2976-LAK (S.D.N.Y.), stating that, "essentially, the aforesaid cite represents the substance" of his claims in this action.
On July 29, 2013, the Court granted Defendant's motion to dismiss the complaint. (D.I. 7) In its Memorandum Opinion, the Court explained that Plaintiff did not have a private right of action under FERA or with respect to his security fraud allegations, and that he had not adequately pled his claims under the FCA or for mortgage fraud. (D.I. 7 at 4, 6) Plaintiff was given leave to amend his FCA and mortgage fraud claims. (D.I. 7 at 5-6) In his Amended Complaint, filed on August 20, 2013, Plaintiff did not elaborate on the FCA or mortgage fraud claims but, instead, raised several new claims. (D.I. 10) On August 22, 2013, Defendant moved to dismiss the Amended Complaint. (D.I. 14) On September 20, 2013, Plaintiff filed a Motion for Extension of Time to File Response/Reply as to Defendant's Motion to Dismiss. (D.I. 16) On March 24, 2014, the Court granted Plaintiff a 30-day extension (D.I. 17) but, to date, he has not filed any opposition to the pending motion.
III. LEGAL STANDARDS
When a defendant fails to file an answering brief in response to a pending motion to dismiss within the time specified by the court, the defendant's case may be dismissed for failure to prosecute. See, e.g., Riley v. Snyder, 2003 WL 179997, *1 (D. Del. 2003) (dismissing defendant's case for failure to prosecute upon failure "to demonstrate the requisite good cause for his [two-year] silence"). Here, however, because Defendant's failure to file his response followed a six-month delay by the Court in granting Defendant's Motion for Extension of Time (D.I. 16, 17), the Court, in considering Defendant's pending motion to dismiss (D.I. 14), will address the merits of Plaintiff's Amended Complaint.
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the Court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the Court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).
However, "[t]o survive a motion to dismiss, a civil plaintiff must allege facts that raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At bottom, "[t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element" of a plaintiff's claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted). The Court is not obligated to accept as true "bald assertions, " Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported conclusions and unwarranted inferences, " Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or allegations that are "self-evidently false, " Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996).
Because Plaintiff proceeds pro se, his pleading is liberally construed and his Amended Complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted). For this reason, the Court will consider the new claims presented in the Amended Complaint and not ...