Citations
- 318 F. Supp. 3d 461
Full opinion text
DANIEL R. DOMÍNGUEZ, United States District Judge
Pending before the Court are twelve (1) Motions to Dismiss and one (1) separate Motion to Joinder: (1) Defendant Banco Popular's Motion to Dismiss the Complaint (Docket No. 96); (2) Defendant Scotiabank's Motion to Dismiss under Rules 12(b)(6) (Docket No. 99); (3) Firstbank's Motion to Dismiss Amended Complaint (Docket No. 103); (4) Motion to Dismiss First Amended Complaint by Defendants Bayview Loan Servicing LLC and Lakeview Loan Servicing LLC (Docket No. 104); (5) Santander Motion to Dismiss First Amended Complaint and Joinder to Motions to Dismiss Filed by Co-Defendants (Docket No. 107); (6) Motion to Dismiss First Amended Complaint for Lack of Personal Jurisdiction by Defendant Wells Fargo & Co. (Docket No. 108); (7) Roosevelt REO PR. Corp., Roosevelt Cayman Asset Company II and Rushmore Loan Management Services' Motion to Dismiss First Amended Complaint (Docket No. 110); (8) RNMP, LLC and TRM, LLC's Motion to Dismiss First Amended Complaint and Joinder to Motions to Dismiss by Banco Popular and Lime Residential (Docket No. 113); (9) James B. Nutter & Company and Federal National Mortgage Association's Motion to Dismiss and/or Strike, or Stay Plaintiffs' First Amended Complaint (Docket No. 114); (10) James B. Nutter & Company and Federal National Mortgage Association's Motion to Join Defendants Oriental Bank Puerto Rico and Banco Popular Puerto Rico's Motion to Dismiss (Docket No. 115); (11) Defendant Lime Residential, LTD.'s Motion to Dismiss Plaintiff's First Amended Complaint (Dkt. 5) (Docket No. 119); (12) Freddie's Amended Motion to Dismiss the Amended Complaint (Docket No. 131), and (13) Operating Partners Co., LLC's Motion to Dismiss the Amended Complaint (Docket No. 132). For the reasons set forth below, the aforementioned Motions to Dismiss and the Motion to Joinder (Docket Nos. 96, 99, 103, 104, 107, 108, 110, 113, 114, 115, 119, 131 and 132) are hereby GRANTED .
I. FACTUAL BACKGROUND
At the outset, the Court notes that Plaintiffs' pleadings included in the First Amended Complaint filed under Docket No. 5 are unclear, very broad and often convoluted and/or of difficult understanding. As a result, this Court has undertaken a maximum of effort to fully comprehend Plaintiffs' allegations and will convey them in a general manner.
Plaintiffs brought a class action suit on behalf of themselves and Class Members who either have been subject to illegitimate foreclosures or sought modifications of payment on their individual mortgage loans through their mortgage servicers of Defendants. Plaintiffs contacted Defendants in an attempt to reduce their loan payments due to a reduction of job hours which affected their payment capacity. See Docket No. 5 at 6. The Defendants allegedly explained to Plaintiffs that they would submit Plaintiffs to a loss mitigation process which would make Plaintiffs eligible to make reduced monthly payments during a three-month trial period. See Docket No. 5 at 7. Plaintiffs allege they complied with the reduced payments but were still harassed by Defendants for delinquency of their payments. Plaintiffs assert that their rights under the Home Affordable Modification Program (HAMP) were not acknowledged. The HAMP program provided a mechanism to stay any foreclosure proceedings and help Plaintiffs fulfill the promise of smaller loan payments. Id. Plaintiffs thus claim that Defendants' failure to honor the HAMP program provisions left them "financially devastated." Docket No. 5 at 8.
All Plaintiffs are residents of Puerto Rico with real estate property holdings in Puerto Rico. See Docket No. 5 at 4. The unknown Plaintiffs, and the Class Members which they represent, are likewise described in very broad terms as any person who has real estate in Puerto Rico and whose real estate is encumbered by a mortgage loan serviced by any of the Defendants in the instant case. The Class Members also include mortgagors who have complied with their obligations under the loan modification programs and have not received any of the benefits of the alleged modifications. See Docket No. 5 at 8. Defendants, on the other hand, are banks or mortgage loan servicers committed to providing mortgage loans to qualified individuals in Puerto Rico. Id. Unknown Defendants, on the other hand, are considered any bank, financial institution or mortgage loan servicers devoted to providing mortgage loans to qualified individuals with offices, branches and subsidiaries in Puerto Rico which can be liable for actions alleged in the Complaint.
The Plaintiffs alleged individual claims related to mortgage loan transactions with one or more of the Defendants. The Complaint, however, fails to specify which financial institution, i.e. which Defendant, financed which loan and/or were designated to provide services under federal laws, the Real Estate Settlement Procedures Act ("RESPA"), Home Affordable Modification Program ("HAMP"), Truth in Lending Act ("TILA"), and Home Affordable Refinance Program ("HARP"). The Plaintiffs instead seem to believe that their individual claims revolve around similar issues and can be addressed under one Complaint.
II. LEGAL STANDARDS
A. FED R. CIV. P. 12(B)(1)
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), a case may be dismissed for lack of subject-matter jurisdiction. Moreover, a failure to state a claim upon which relief can be granted may be dismissed under Rule 12(b)(6).
The standard of review under subsection 12(b)(1) lack of subject matter jurisdiction is "similar to that accorded a dismissal for failure to state a claim" under subsection 12(b)(6). Murphy v. United States , 45 F.3d 520, 522 (1st Cir. 1995). However, "[w]hile the court generally may not consider materials outside the pleadings on a Rule 12(b)(6) motion, it may consider such materials on a Rule 12(b)(1) motion." Gonzalez v. United States , 284 F.3d 281, 288 (1st Cir. 2002). These materials may include "affidavits and testimony to resolve factual disputes concerning the existence of jurisdiction." Fernández Molinary, et als. v. Industrias La Famosa, Inc., et als. , 203 F.Supp.2d 111, 114-115 (D.P.R. 2002) (citing Land v. Dollar , 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) ).
In a jurisdictional challenge by a defendant, the burden of proving jurisdiction is on the plaintiff. Rolón v. Rafael Rosario & Associates, Inc., et al. , 450 F.Supp.2d 153, 153 (D.P.R. 2006) ; see also , Mercado Arocho v. United States, 455 F.Supp.2d 15, 17 (D.P.R. 2006) ("Plaintiff shall meet the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence.")(internal citations and quotations omitted). Moreover, a dismissal pursuant to a Rule12(b)(1), as a direct challenge to federal subject matter jurisdiction, also includes sovereign immunity, mootness, ripeness, and subject matter jurisdiction. See Valentin v. Hospital Bella Vista , 254 F.3d 358, 362-363 (1st Cir. 2001). Federal courts "are courts of limited jurisdiction, and therefore must be certain that they have explicit authority to decide a case." Bonas v. Town of North Smithfield , 265 F.3d 69, 75 (1st Cir. 2001) (internal citations omitted).
B. FED R. CIV. P. 12(B)(2)
Pursuant to Fed. R. Civ. P. 12(b)(2)" Rule 12(b)(2)", a defendant may move to dismiss a complaint for lack of personal jurisdiction. Where the Court refrains from holding an evidentiary hearing, the Court applies the "prima facie" standard. United States v. Swiss Am. Bank, Ltd. , 274 F.3d 610, 618-19 (1st Cir. 2001) (internal citations omitted); see generally , International Trading Partners, Inc. v. Cobra Scooters, LLC , 403 F.Supp.2d 180, 183 (D.P.R. 2005).
Pursuant to the "prima facie" standard, the plaintiff is responsible for establishing that the Court has personal jurisdiction over the defendants. See Swiss Am. Bank, 274 F.3d at 618. However, to persuade, the plaintiff may not rely solely on the pleadings. See Negron-Torres v. Verizon Commc'ns, Inc. , 478 F.3d 19, 23 (1st Cir. 2007) (internal citations omitted). Rather, the plaintiff must submit properly supported facts and "make affirmative proof." Id. In essence, the "inquiry is whether the plaintiff has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction." Bluetarp Financial, Inc. v. Matrix Const. Co., Inc. , 709 F.3d 72 (1st Cir. 2013) (quoting Phillips v. Prairie Eye Ctr. , 530 F.3d 22, 26 (1st Cir. 2008) ). The plaintiff's evidence is thus assumed to be accurate and it is viewed in the light most favorable to the plaintiff. See Astro-Med, Inc. v. Nihon Kohden Am., Inc. , 591 F.3d 1, 8 (1st Cir. 2009) (internal citations omitted). Finally, a defendant's evidence is only relevant to the extent that it is uncontested by the plaintiff. Id.
C. FED R. CIV. P. 12(B)(4)
Pursuant to Fed. R. Civ. P. 12(b)(4)" Rule 12(b)(4)", a party is allowed "to assert a defense of insufficient process or insufficient service of process. These defenses may be waived if not timely asserted." Brown v. Sedgwick Claims Management Services, Inc. , 2016 WL 4273193, at *2 (D. P.R. 2016) (citing Williams v. Jones , 11 F.3d 247, 251 (1st Cir. 1993) ). Generally, a court lacks jurisdiction over a certain defendant if there has been insufficient service of process. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. , 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) ("In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant."). This Rule 12(b)(4) is crucial, as the Supreme Court of the United States of America explained in Murphy Bros., Inc. , "[b]efore a ... court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Id. at 350, 119 S.Ct. 1322 (internal quotations omitted).
Further, a motion under Rule 12(b)(4), and its partner Rule, Fed. R. Civ. P. 12(b)(5)"Rule (12)(b)(5), "differ from other motions brought before the court pursuant to Rule 12(b), in that they provide the district court a course of action-other than simply dismissing the case-when the defendant's defense or objection is sustained." Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1354 (3ed. 2017). When a defendant therefore challenges service of process, the burden changes to the plaintiff to prove that service was adequate. See Blair v. City of Worcester , 522 F.3d 105, 111 (1st Cir. 2008) ("once challenged, plaintiffs have the burden of proving proper service") (quoting Rivera-Lopez v. Municipality of Dorado , 979 F.2d 885, 887 (1st Cir. 1992) (internal citations omitted).
D. FED R. CIV. P. 12(B)(6)
Federal Rule of Civil Procedure 8(a) requires plaintiffs to provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under Bell Atlantic v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a plaintiff must "provide the grounds of his entitlement [with] more than labels and conclusions ." See Ocasio-Hernandez v. Fortuño-Burset , 640 F.3d 1, 12 (1st Cir. 2011) (emphasis ours)("in order to 'show' an entitlement to relief a complaint must contain enough factual material 'to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).')(quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ) (citation omitted). Thus, a plaintiff must, and is now required to, present allegations that "nudge [his] claims across the line from conceivable to plausible" in order to comply with the requirements of Rule 8(a). Id. at 570, 127 S.Ct. 1955 ; see e.g. Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
When considering a motion to dismiss, the Court's inquiry occurs in a two-step process under the current context-based "plausibility" standard established by Twombly , 550 U.S. 544, 127 S.Ct. 1955, and Iqbal , 556 U.S. 662, 129 S.Ct. 1937. "Context based" means that a Plaintiff must allege sufficient facts that comply with the basic elements of the cause of action. See Iqbal , 556 U.S. at 677-679, 129 S.Ct. 1937 (concluding that plaintiff's complaint was factually insufficient to substantiate the required elements of a Bivens claim, leaving the complaint with only conclusory statements). First, the Court must "accept as true all of the allegations contained in a complaint[,]" discarding legal conclusions, conclusory statements and factually threadbare recitals of the elements of a cause of action. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "Yet we need not accept as true legal conclusions from the complaint or 'naked assertion[s]' devoid of 'further factual enhancement.' " Maldonado v. Fontanes , 568 F.3d 263, 268 (1st Cir. 2009) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ) (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).
Under the second step of the inquiry, the Court must determine whether, based upon all assertions that were not discarded under the first step of the inquiry, the complaint "states a plausible claim for relief." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. This second step is "context-specific" and requires that the Court draw from its own "judicial experience and common sense" to decide whether a plaintiff has stated a claim upon which relief may be granted, or, conversely, whether dismissal under Rule 12(b)(6) is appropriate. Id.
Thus, "[i]n order to survive a motion to dismiss, [a] plaintiff must allege sufficient facts to show that he has a plausible entitlement to relief." Sanchez v. Pereira-Castillo , 590 F.3d 31, 41 (1st Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]' 'that the pleader is entitled to relief.' " Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2) ). Furthermore, such inferences must be at least as plausible as any "obvious alternative explanation." Id. at 679-80, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 567, 127 S.Ct. 1955 ). "A plaintiff is not entitled to 'proceed perforce' by virtue of allegations that merely parrot the elements of the cause of action ." Ocasio-Hernandez , 640 F.3d at 12, (citing Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 )(emphasis ours)
However, a complaint that rests on "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like" will likely not survive a motion to dismiss . Aulson v. Blanchard , 83 F.3d 1, 3 (1st Cir. 1996) (emphasis ours). Similarly, unadorned factual assertions as to the elements of the cause of action are inadequate as well.
Penalbert-Rosa v. Fortuno-Burset , 631 F.3d 592 (1st Cir. 2011). "Specific information, even if not in the form of admissible evidence, would likely be enough at [the motion to dismiss] stage; pure speculation is not." Id. at 596 ; see Iqbal , 556 U.S. at 681, 129 S.Ct. 1937 ("To be clear, we do not reject [ ] bald allegations on the ground that they are unrealistic or nonsensical.... It is the conclusory nature of [the] allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth."); see Mendez Internet Mgmt. Servs. v. Banco Santander de P.R. , 621 F.3d 10, 14 (1st Cir. 2010) (The Twombly and Iqbal standards require District Courts to "screen[ ] out rhetoric masquerading as litigation.").
The First Circuit has cautioned against equating plausibility with an analysis of the likely success on the merits, affirming that the plausibility standard assumes "pleaded facts to be true and read in a plaintiff's favor" "even if seemingly incredible." Sepúlveda-Villarini v. Dep't of Educ. of P.R. , 628 F.3d 25, 30 (1st Cir. 2010) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ); Ocasio-Hernandez , 640 F.3d at 12 (citing Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ); see Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ("[A] well-pleaded complaint may proceed even if it appears that a recovery is very remote and unlikely.")(internal quotation marks omitted); see Ocasio-Hernandez , 640 F.3d at 12 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 )("[T]he court may not disregard properly pled factual allegations, 'even if it strikes a savvy judge that actual proof of those facts is improbable.' "). Instead, the First Circuit has emphasized that "[t]he make-or-break standard ... is that the combined allegations, taken as true, must state a plausible, [but] not a merely conceivable, case for relief." Sepúlveda-Villarini , 628 F.3d at 29. Additionally, a district court may not weigh evidence in deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Massachusetts Delivery Ass'n v. Coakley , 671 F.3d 33, 39 n. 6 (2012) (emphasizing that a primary difference between a motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6) is that, under Rule 12(b)(1), a court may weigh the evidence and make factual determinations).
The First Circuit recently outlined two further considerations for district courts to note when analyzing a motion to dismiss. García-Catalán v. United States , 734 F.3d 100, 104 (1st Cir. 2013). First, a complaint modeled on Form 11 of the Appendix of the Federal Rules of Civil Procedure which contains sufficient facts to make the claim plausible is ordinarily enough to surpass the standard prescribed under Twombly - Iqbal . Id. at 104. Second, district courts should accord "some latitude" in cases where "[a] material part of the information needed is likely to be within the defendant's control." Id. (more latitude is appropriate in cases where "it cannot reasonably be expected that the [plaintiff], without the benefit of discovery, would have any information about" the event that gave rise to the alleged injury.)(internal citations and quotations omitted).
E. FED R. CIV. P. 8(a)
Federal Rule of Civil Procedure 8(a), " Rule 8(a)" provides the following:
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
In particular, Rule 8(a)(2) requires that plaintiffs provide a short statement of the claim "showing that the pleader is entitled to relief." See Fed. R. Civ. P. 8(a)(2) as stated before. Under Twombly , a plaintiff must hence "provide the grounds of his entitlement [with] more than labels and conclusions." Twombly , 550 U.S. at 545, 127 S.Ct. 1955 ; see also , Ocasio-Hernandez v. Fortuño-Burset , 640 F.3d at 12 ("in order to 'show' an entitlement to relief a complaint must contain enough factual material 'to raise a right to relief above the speculative level.' ") (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ) (citation omitted). Thus, a plaintiff must present allegations that "nudge [his] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ; see e.g. , Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The United States Court of Appeals for the First Circuit ("First Circuit") explained in Sepúlveda-Villarini v. Department of Educ. of Puerto Rico , 628 F.3d at 29 (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ) that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.... [It] is not akin to a 'probability requirement,' but it asks for more than a sheer possibility." In this "plausibility" inquiry, the Court utilizes the "context-based" two-step process established by Twombly and Iqbal . "Context based" suggests that a plaintiff must allege sufficient facts that comply with the elements of the cause of action. See Iqbal , 556 U.S. at 677-679, 129 S.Ct. 1937. The Court must first "accept as true all of the allegations ... in a complaint[,]" and discard legal conclusions and conclusory statements. Id. at 678, 129 S.Ct. 1937.
As stated supra , under the second step, the Court must then determine whether the remaining assertions in the complaint "[state] a plausible claim for relief." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. The second step requires that the Court draw from its own "judicial experience and common sense" to determine whether a plaintiff has surpassed his burden of proof, or, conversely, whether dismissal under Rule 12(b)(6) is appropriate. Id. ; see also , García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). Hence, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]' 'that the pleader is entitled to relief.' " Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2) ); see also at pages 471-73 of this Opinion other citations established by the Circuit Court.
F. FED R. CIV. P. 8(d)(1)
Federal Rule of Civil Procedure 8(d)(1), " Rule 8(d)(1)" provides the following:
(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.
(1) In General. Each allegation must be simple, concise, and direct. No technical form is required.
The Court notes that Rule 8(d)(1) actively restricts the pleadings. Most notably, the Rule "restrict[s] the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial". Hickman v. Taylor , 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ; see also Politico v. Promus Hotels, Inc. , 184 F.R.D. 232, 233 (E.D.N.Y. 1999) ("The complaint should state only enough facts, in simple, concise, and direct terms to show what plaintiff's claims are and to allow defendant to respond."). Recently, the Court has reiterated this doctrine in Finance of America Reverse, LLC v. Gonzalez , 2017 WL 4772414, at *3 (D. P.R. 2017) and Rivera-Marrero v. Presbyterian Community Hospital , 255 F.Supp.3d 290, 295 (D. P.R. 2017).
Further, while the First Circuit has not expressly ruled on the scope of Rule 8(d)(1), other circuits such as the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit") have affirmed dismissal for failure to comply with Rule 8. See, e.g. , McHenry v. Renne , 84 F.3d 1172, 1177 (9th Cir. 1996) ("[T]he complaint ... is argumentative, prolix, replete with redundancy, and largely irrelevant. It consists largely of immaterial background information."). By the same token, the United States Court of Appeals for the Third Circuit ("Third Circuit") stated in Adderly v. Stofko , 646 Fed. Appx. 138, 141 (3rd Cir. 2016) (quoting Glover v. F.D.I.C. , 698 F.3d 139, 147 (3rd Cir. 2012) that:
A complaint must " 'be presented with clarity sufficient to avoid requiring a district court or opposing party to forever sift through its pages in search' of the nature of the plaintiff's claim." Adderly's complaint does not meet that standard, and Adderly refused to amend his complaint to correct that deficiency even when presented with multiple opportunities to do so. (Emphasis ours).
G. FED R. CIV. P. 9(b)
Federal Rule of Civil Procedure 9(b), " Rule 9(b)" provides the following:
(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
In order to satisfy Rule 9(b)'s particularity requirement, a plaintiff must ensure to "go beyond a showing of fraud and state the time, place and content of the alleged mail and wire communications perpetrating that fraud." Caro-Bonet v. Lotus Management, LLC , 195 F.Supp.3d 428, 433 (D.P.R. 2016) (quoting Cordero-Hernandez v. Hernandez-Ballesteros , 449 F.3d 240, 244 (1st Cir. 2006) ). The First Circuit has further reinforced that Rule 9(b) has the principle "purposes of '[giving] notice to defendants of the plaintiffs' claim, [protecting] defendants whose reputation may be harmed by meritless claims of fraud, [discouraging] 'strike suits,' and [preventing] the filing of suits that simply hope to uncover relevant information during discovery.' " United States ex rel. Nargol v. DePuy Orthopedics, Inc. , 865 F.3d 29, 38 (1st Cir. 2017) (internal quotations omitted).
The First Circuit has further detailed the specificity required by Rule (9)(b). See , e.g., Greebel v. FTP Software, Inc., 194 F.3d 185, 193 (1st Cir. 1999) (citing McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir. 1980) ) ("This circuit has interpreted Rule 9(b) to require 'specification of the time, place, and content of an alleged false representation.' Even where allegations are based on information and belief, supporting facts on which the belief is founded must be set forth in the complaint."). Finally, in Woods v. Wells Fargo Bank, N.A. , 733 F.3d 349, 358 (1st Cir. 2013), the First Circuit held that although the Plaintiff's complaint "includes a ... recitation of the elements of fraud, she does not indicate when, where, and how often.... She also fails to state the specific nature of the resulting harm, indicating only that it was ... monetary.... This vague pleading falls short of Rule 9(b)'s particularity requirement."
H. FED R. CIV. P. 10(b)
Federal Rule of Civil Procedure 10(b), " Rule 10(b)" provides in the relevant part:
(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence-and each defense other than a denial-must be stated in a separate count or defense.
The First Circuit has yet to express the limits of Rule 10(b) within its jurisdiction, as such federal courts rely on the interpretations of the other circuit courts in our judicial system. We note, for example, that complaints which violate Rule 10(b), and its partner rule in many complaints, Rule 8(a)(2), tend to be negatively referred to as "shotgun pleadings." See Weiland v. Palm Beach County Sherriff's Office , 792 F.3d 1313, 1320 (11th Cir. 2015). Because of this negative connotation, circuit courts have attempted to define the scope of these aforementioned Rules. This scope was first articulated in T.D.S. Inc. v. Shelby Mut. Ins. Co. , 760 F.2d 1520 (11th Cir. 1985), wherein the United States Court of Appeals for the Eleventh Circuit explained that these Rules:
[R]equire the pleader to present his claims discretely and succinctly, so that, his adversary can discern what he is claiming and frame a responsive pleading, the court can determine which facts support which claims and whether the plaintiff has stated any claims upon which relief can be granted, and, at trial, the court can determine that evidence which is relevant and that which is not. "Shotgun" pleadings, calculated to confuse the "enemy," and the court, so that theories for relief not provided by law and which can prejudice an opponent's case, especially before the jury, can be masked, are flatly forbidden by the letter, if not the spirit, of these rules.
Id. , at 1543 n. 14.
These so-called "shotgun pleadings," therefore, fail to provide the defendants with sufficient notice as to the claims against them. Further, the Eleventh Circuit has stated that a shotgun pleading "completely disregards Rule 10(b)'s requirement that discrete claims should be plead in separate counts ... and is the type of complaint that we have criticized time and time again." Litman v. Secretary, of the Navy , 703 Fed.Appx. 766, 770 (11th Cir. 2017) (quoting Magluta v. Samples , 256 F.3d 1282, 1284 (11th Cir. 2001) ).
The United States Court of Appeals for the Seventh Circuit ("Seventh Circuit") has likewise reiterated that a complaint is "subject to dismissal under [ Rule 10(b) ] ... if it is unduly long or if it is unintelligible." John H. Davis, et al. v. Jeanne W. Anderson, et al. , 718 Fed.Appx. 420, 423 (7th Cir. 2017) (citing Kadamovas v. Stevens , 706 F.3d 843, 844 (7th Cir. 2013) ). Other Seventh Circuit cases have also applied the same rationale. See e.g. , Cincinnati Life Ins. Co. v. Beyrer , 722 F.3d 939, 946 (7th Cir. 2013) (wherein the Seventh Circuit confirmed the district court's ruling which dismissed the appellant's first and second claims, despite him being given numerous occasions to revise the complaint, because "it is difficult to see how [appellant's first two claims] comply with Rule 10(b), either in technicality or in spirit."); see also , Frederiksen v. City of Lockport , 384 F.3d 437 (7th Cir. 2004) (wherein the court of appeals dismissed a complaint with prejudice because plaintiff failed to comply with Rule 10(b) after being given four opportunities and two years to amend his complaint.)
I. FED R. CIV. P. 20
Federal Rule of Civil Procedure 20, and in particular its subsection 20(a)(1)(A), (collectively " Rule 20"), provides the following:
i. FED R. CIV. P. 20(a)(1)(A)
(a) Persons Who May Join or Be Joined.
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
(2) Defendants. Persons-as well as a vessel, cargo, or other property subject to admiralty process in rem-may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
(3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities.
(b) Protective Measures. The court may issue orders-including an order for separate trials-to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.
Rule 20's application is of limited nature. The purpose of Rule 20, and in particular Rule 20(a)(1)(A), is to allow the joinder in a single action of a party asserting, or defending, a joinder or other associated severance right to relief. It aims to "promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits." Wright & Miller, supra § 1652. If the two requirements specified in Rule 20(a)(1) in particular, "are not satisfied, a 'court, in its discretion, may sever the misjoined parties, so long as no substantial right will be prejudiced by the severance. In such a case, the court can generally dismiss all but the first named plaintiff without prejudice to the institution of new, separate lawsuits.' " Cruz v. Bristol-Myers Squibb Co., PR, Inc. , 699 F.3d 563, 569 (1st Cir. 2012) (quoting Coughlin v. Rogers , 130 F.3d 1348, 1351 (9th Cir. 1997) ). This Court has, likewise been clear that "[a]lthough Rule 20(a) is to be construed liberally for the sake of convenience and judicial economy ... the rule is not a license for unbridled joinder of unrelated claims." Cruz v. Bristol Myers Squibb Co. P.R., Inc. , 264 F.R.D. 22, 25 (D.P.R. 2010) ; see also , Pineiro Díaz v. Adchem Pharma Operations , 2005 WL 2397489 (D.P.R. 2005).
The First Circuit has dissuaded similar mass joinders in cases such as Abdullah v. ACandS, Inc. , 30 F.3d 264 (1st Cir. 1994), wherein the Circuit court agreed with the district court that the complaint failed to satisfy the threshold requirements of Rule 20. In fact, the First Circuit highlighted that "[t]he Complaint is bereft of factual allegations indicating why 1000 plaintiffs and 93 defendants belong in the same action. It gives no indication of whether plaintiffs ... were injured by exposure to the same asbestos-containing products..., nor any specification of the products or equipment to which they were exposed. " Id. at 268 n.5 (emphasis ours). Finally, other circuits and district courts have also dismissed mass joinder suits wherein the allegedly related claims arose out of unrelated loans. See Michaels Bldg. Co. v. Ameritrust Co., N.A. , 848 F.2d 674 (6th Cir. 1988) ; see also Tredo v. Ocwen Loan Servicing, LLC , 2014 WL 5092741 (D.N.J. 2014) (wherein the district court dismissed a complaint by 15 plaintiffs who obtained 15 unrelated residential loans serviced by the defendant because the claims did not arise out of the same series of transactions.); Visendi v. Bank of America, N.A. , 733 F.3d 863, 870 (9th Cir. 2013) (wherein the Ninth Circuit determined that joinder was improper when 160 named plaintiffs filed suit against 15 different defendants for illicit lending practices because "[n]othing unites all of these Plaintiffs but the superficial similarity of their allegations and their common choice of counsel.")
J. FED R. CIV. P. 21
Federal Rule of Civil Procedure 21, " Rule 21" provides the following:
Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.
The First Circuit has been adamant that "the decision to separate parties or claims is a case management determination 'peculiarly within the discretion of the trial court,' and courts of appeals accord broad latitude to district courts in this area." Acevedo-Garcia v. Monroig , 351 F.3d 547, 558 (1st Cir. 2003) (quoting Gonzalez-Marin v. Equitable Life Assurance Society, 845 F.2d 1140, 1145 (1st Cir. 1988) ). Hence, a court may drop all plaintiffs and defendants from a suit and dismiss them from prejudice, except for the first named party. See PPV Connection, Inc. v. Melendez , 679 F.Supp.2d 254, 258 (D.P.R. 2010).
The judgment in a severed action is considered final and enforceable when it disposes of all parties and issues. Most notably, "once a claim has been severed ... it proceeds as a discrete unit with its own final judgment, from which an appeal may be taken." Wright & Miller supra , § 1689. Severance is fitting wherein the venue is improper as to some but not all defendants. Id. On the other hand, severance will be denied "if the court believes that it will only result in delay, inconvenience, or added expense." Id. ; see also , In re Cyberonics Inc. Secs. Litigation , 468 F.Supp.2d 936 (S.D. Tex. 2006) ; Levine v. FDIC , 136 F.R.D. 544 (D. Conn. 1991).
Moreover, the First Circuit has also specified on several occasions that "[d]ismissal of a nondiverse dispensable party has long been recognized as a way to cure a jurisdictional defect and Rule 21 explicitly vests district courts with authority to allow a dispensable non-diverse party to be dropped at any time." Cason v. Puerto Rico Elec. Power Authority , 770 F.3d 971, 977 (1st Cir. 2014) (citing Newman-Green, Inc. v. Alfonzo-Larrain , 490 U.S. 826, 832-38, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) ). Other circuits have similarly determined that in regards to dispensable parties, it is appropriate to sever any dispensable non-diverse parties in order to preserve the jurisdiction over the diverse parties. See, e.g. , Trans Energy, Inc. v. EQT Production Co. , 743 F.3d 895 (4th Cir. 2014) (wherein the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") decided that it was proper to dismiss the non-diverse party from the suit). The Supreme Court has stated that in regards to this jurisdictional issue, the court must always ask " 'whether ... they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights may be made, [and if so] the jurisdiction of the court should be retained and the suit dismissed as to them.' " Grupo Dataflux v. Atlas Global Group. L.P. , 541 U.S. 567, 572, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004)
(quoting Horn v. Lockhart , 17 Wall. 570, 579, 21 L.Ed. 657 (1873) ).
K. FED R. CIV. P. 23
The prerequisites established in Federal Rule of Civil Procedure 23, " Rule 23" provide the following:
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.
(1) Certification Order.
(A)Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.
Firstly, the Supreme Court and by extension the district courts, have emphasized that there can be no class action suit without first identifying and certifying the class. See Rivera-Colon v. Torres-Diaz , 252 F.Supp.3d 68, 71 n.1 (D.P.R. 2017) (citing Baxter v. Palmigiano , 425 U.S. 308, 310 n. 1, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) ). The Supreme Court has also been consistent in stating that "the class action is 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.' " ( Comcast Corp. v. Behrend , 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979) ) ). To be part of this exception, and to classify as a class action, a party must therefore meet the requirements set forth in Rule 23. See generally , Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). However, Rule 23 should not be considered a pleading standard, rather, a party must "be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact," a set of claims or defenses, and adequacy of representation. Id. at 350, 131 S.Ct. 2541.
The Supreme Court has also expressed that "certification is proper only if 'the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.' " Id. at 350-51, 131 S.Ct. 2541 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ). The same analytical principles oversee the application of Rule 23(b). If anything, Rule 23(b), especially Rule 23(b)(3)'s provisions, may be considered even more demanding than Rule 23(a). See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (wherein the Supreme Court stated that Rule 23(b)(3) is designed for situations "in which "class-action treatment is not as clearly called for.").
The First Circuit exemplified the scope of Rule 23(b), in particular Rule 12(b)(3), when it ruled in In re Nexium Antitrust Litigation , 777 F.3d 9 (1st Cir. 2014), that the class certification was proper, despite including class members who were not injured by the generic foreclosure. That is to say, the member class included individual consumers who would have continued to purchase branded Nexium for the same price even after the generic drug entered the market. In said case, the First Circuit explained that the class certification was appropriate precisely because the plaintiffs were able to show that they would have all suffered injuries. In essence, the class could fulfill the "predominance" requirement prescribed by Rule 23(b)(3). To meet this requirement, "the party seeking certification must show that 'the fact of antitrust impact can be established through common proof' and that 'any resulting damages would likewise be established by sufficiently common proof.' " Id. at 18 (quoting In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 20 (1st Cir. 2014) (emphasis added) ). Hence, the party seeking certification carries the burden of proof in proving that they complied with all the elements of Rule 23. See Comcast , 569 U.S. at 33, 133 S.Ct. 1426. Further, with regards to individual versus common questions regarding liability, the First Circuit has stated that "[t]he individuation of damages in consumer class actions is rarely determinative under Rule 23(b)(3). Where ... common questions predominate regarding liability, then courts generally find the predominance requirement to be satisfied even if individual damages issues remain." Smilow v. Southwestern Bell Mobile Systems, Inc. , 323 F.3d 32, 40 (1st Cir. 2014).
III. DISCUSSION
A. Banco Popular of Puerto Rico
Defendant Banco Popular of Puerto Rico ("Banco Popular") claims in its Motion to Dismiss the Complaint that many of the Plaintiffs, including the first named plaintiff Lilliam González, did not enter their loan from, or have their loan serviced by, defendant Banco Popular. See Docket No.
96. Moreover, Banco Popular alleges that the Plaintiffs have failed to provide specific facts in the Complaint which can prove Banco Popular's alleged illegality in detail. This Court will thus analyze all of Banco Popular's claims in a detailed, seriatim fashion as many of the other Defendants which have also filed motions to dismiss in the case at bar seek to join Banco Popular's claims.
i. Plaintiffs' lack standing to bring suit against Defendant Banco Popular
Banco Popular contends that Plaintiffs lack the requisite standing to bring claims against Banco Popular for any alleged harm that the Plaintiffs may have suffered. See Docket No. 96 at 2. This standing requirement has three core elements. As stated in Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), these elements are the following:
First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical.' " Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
Defendant Banco Popular states that many of the Plaintiffs have no business relationship with Banco Popular and thus lack standing to bring suit against Banco Popular. See Docket No. 96 at 3. Moreover, Plaintiffs have yet to connect any facts regarding an "injury in fact" caused by Banco Popular as to any of the Plaintiffs. Hence, Plaintiffs cannot even survive the first standing element, let alone the other two. Banco Popular similarly cautions that this same logic would apply to most of the Plaintiffs claims, if not all, against the Defendants named in the instant case. See Id.
Likewise, in their Response In Opposition To Motions to Dismiss, To Motion For Joinder To Motion To Dismiss And Amended Motion To Dismiss [hereinafter, Response in Opposition to Motions to Dismiss ] filed under Docket No. 137, Plaintiffs failed to mention this lack of standing allegation. Consequently, these allegations of lack of standing are currently unopposed.
ii. Plaintiffs' First Amended Complaint Fails To Comply With The Federal Rules Of Civil Procedure
1. Complaint does not comply with Rule 8(a)(2)
Banco Popular contends that Plaintiffs failed to include a short and plain statement of claims as required by Rule 8(a), and in particular Rule 8(a)(2). Further, Banco Popular alleges that Plaintiffs failed to meet this requirement because Plaintiffs simply have no knowledge as to what actions they are alleging against Banco Popular. See Guadalupe-Baez v. Pesquera , 819 F.3d 509, 514 (1st Cir. 2016). Moreover, Banco Popular states that Plaintiffs instead make broad generalizations against Defendants, rather than identifying specific allegations regarding Banco Popular and which of the plaintiffs expressed allegations as to Banco Popular. They further assert that "[t]his 'one-size-fits-all' approach to pleading is not a serious attempt at alleging bona fide grievances concerning Plaintiffs' loans." Docket No. 96 at 5. These facts are particularly critical because the Court has yet to determine that the instant case constitutes a class action.
See discussion as to Rule 21(a)(1)(A) and Rule 23, supra.
In their Response in Opposition to Motions to Dismiss , Plaintiffs argue that they complied with the Rule's requirement because they include a "short and plain statement of claim" in their Complaint. Likewise, Plaintiffs state that case law dictates that a complaint must include just enough facts to be "plausible," which Plaintiffs claim they have done.
However, Plaintiffs failed to cite in their Response in Opposition to Motions to Dismiss even a single instance in their First Amended Complaint which may associate Banco Popular with the alleged misconduct. See Docket No. 137. Plaintiffs thus failed to comply with Rule 8(a)(2).
2. Complaint does not comply with Rule 9(b)
Banco Popular also alleges that Plaintiffs failed to state with particularity the circumstances of the alleged false representation. However, Plaintiffs must comply with Rule 9(b) even if they do not explicitly claim fraud, but their allegations nonetheless sound like fraud. See generally , Mulder v. Kohl's Department Stores, Inc. , 865 F.3d 17, 22 (1st Cir. 2017). Banco Popular thus states that Plaintiffs have failed to meet this particularity requirement in terms of false representation and fraud, in regards to any of the Defendants, let alone Banco Popular. See e.g. , Blue v. Doral Financial Corp. , 123 F.Supp.3d 236, 271 (D.P.R. 2015), wherein this Court stated that certain allegations with regards to individual Defendants, "fall short of the pleading requirements of Rule 9(b)... [because they] group all of the Individual Defendants together generally without specifically referring to each one of them and are generally conclusory by failing to specify the what, where, and when of the alleged fraud." See generally discussion as to Rule 9(b), supra.
In their Response in Opposition to Motions to Dismiss , Plaintiffs failed to include any statements providing the Court with specific instances of alleged fraud by any of the Defendants. See Docket No. 137. Hence, Plaintiffs also failed to comply with Rule 9(b).
3. Complaint does not comply with Rule 10(b)
Rule 10(b) asks parties to state their claims in "numbered paragraphs." To wit, Banco Popular explains that the First Amended Complaint is a "meandering compilation of conclusory allegations devoid of clarity." Docket No. 96 at 6. According to Banco Popular, this lack of compliance by the Plaintiffs with Rule 10(b) justifies dismissal of the First Amended Complaint. While the First Circuit has not expressly ruled on noncompliance with Rule 10(b), other Circuits have been resolute that noncompliance may justify dismissal. See e.g. , Davis v. Anderson , 718 Fed.Appx. 420, 423-24 (7th Cir. 2017). In Davis , Plaintiffs filed a 574 page Complaint, naming 16 defendants and attached 429 pages of exhibits. The District Court struck the original complaint and ordered the Plaintiffs to file a complaint that complies with the applicable rules of civil procedure. In compliance with said Order, Plaintiffs filed an amended 165-page complaint with the same 429 pages of exhibits. A second amended complaint followed which included 215 pages plus the same 429 pages of exhibits included in the original complaint. The Court held:
The judge had seen enough: he dismissed the case with prejudice for failure to comply with the basic requirements set forth in Rules 8 and 10 of the Federal Rules of Civil Procedure.
Id. at 422.
...
Moving to the merits, dismissal for noncompliance with Rules 8 and 10(b) is discretionary, and our review is for abuse of that discretion. See Stanard v. Nygren , 658 F.3d 792, 796-97 (7th Cir. 2011) ; Frederiksen v. City of Lockport , 384 F.3d 437, 439 (7th Cir. 2004). Rule 8(a) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 10(b) requires a party to state its claims or defenses in numbered paragraphs, "each limited as far as practicable to a single set of circumstances." Fed. R. Civ. P. 10(b). The primary purpose of these rules "is to give defendants fair notice of the claims against them and the grounds supporting the claims." Stanard , 658 F.3d at 797. So a complaint is subject to dismissal under these rules if it is unduly long or if it is unintelligible.See Kadamovas v. Stevens , 706 F.3d 843, 844 (7th Cir. 2013) ; U.S. ex rel. Garst v. Lockheed-Martin Corp. , 328 F.3d 374, 378 (7th Cir. 2003). The amended complaint suffers from both defects. (Emphasis ours.)
...
Rule 8"requires parties to make their pleadings straightforward, so that judges and adverse parties need not try to fish a gold coin from a bucket of mud." Garst , 328 F.3d at 378 (emphasis added). And Rule 10(b)"requires allegations to be separated into numbered paragraphs[ ] and distinct claims to be separated into counts." Frederiksen , 384 F.3d at 438 (emphasis added). The amended complaint complies with neither Rule.
Id. at 424.
In the opposition by Plaintiff filed in the Response in Opposition to Motions to Dismiss , Plaintiffs in the case at bar failed to provide any explanation as to why they did not comply with the above-mentioned Rule 10(b). See Docket No. 137.
iii. Plaintiffs failed to state any claim for which relief can be granted
Banco Popular reiterates in its Motion to Dismiss that the First Circuit has stated that a court will "isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements" when analyzing the merits of a Rule 12(b)(6) dismissal. Schatz v. Republican State Leadership Committee , 669 F.3d 50, 55 (1st Cir. 2012) ; see also , Docket No. 96 at 14; see also Ocasio-Hernandez , 640 F.3d at 12 ; see also Sanchez , 590 F.3d at 49. A court should likewise ensure that parties meet the pleading requirement standards set forth in Rule 8(a)(2). See generally , Twombly, 550 U.S. at 555-558, 127 S.Ct. 1955.
1. Plaintiffs' Breach of Contract Claim Fails as a Matter of Law
Puerto Rico law states that the elements of a cause of action required in a breach of contract suit are the following: 1) a valid contract, and 2) a breach by one of the contracting parties. See Markel American Ins. Co. v. Diaz-Santiago , 674 F.3d 21, 31 (1st Cir. 2012) (citing Dantlzer, Inc. v. Lamas-Besos , 2010 WL 2572618, at * 3 (D.P.R. 2010). Most notably, in order for a nonperformance claim to prosper, a moving party must "establish the real and positive existence of the damages caused." Mega Media Holdings, Inc. v. Aerco Broadcasting Corp. , 2013 WL 12234184, at *5 (D.P.R. 2013) (citations omitted). In the First Amended Complaint , Plaintiffs claim that they executed valid contracts with Defendants, although it appears they fail to specify which Defendants and which Plaintiffs entered into the individual mortgage payments. See Docket No. 5 at 25. Plaintiffs contend that a Defendant did not "perform in accordance with the contract terms regarding the trial modification period, and in fact, Defendant intentionally and systematically delayed converting the trial modifications into permanent modifications." Id. Banco Popular, however, states that the First Amended Complaint fails to specify which of the above-mentioned trial modification contract provisions allegedly bind Banco Popular may be found in the First Amended Complaint. Likewise, Banco Popular also claims that the First Amended Complaint fails to state how Banco Popular allegedly breached said contract. As such, Banco Popular contends that these general and conclusory breaches of contract claims fail to meet the pleading standard required by Twombly . See Docket No. 96 at 8; see also Twombly , 550 U.S. at 556-557, 127 S.Ct. 1955.
In their Response in Opposition to Motions to Dismiss , Plaintiffs failed to address Banco Popular's claims, and failed to provide any details as to how Banco Popular's actions could be construed as breaches of contract. See Docket No. 137. The Court agrees with Banco Popular.
2. Plaintiffs' Claim for Breach of Implied Covenant of Good Faith and Fair Dealing Fails as a Matter of Law
The First Circuit, and this Court, has remained steadfast in that there is a duty of good faith imposed among contracting parties. See Nadherny v. Roseland Property Company, Inc. , 390 F.3d 44 (1st Cir. 2004) ; see also , Adria Intern. Group, Inc. v. Ferre Development, Inc. , 241 F.3d 103 (1st Cir. 2001). Further, a plaintiff must prove bad faith or intentional fault, given that good faith is presumed. See Burk v. Paulen , 100 F.Supp.3d 126, 135 (D.P.R. 2015) ; see also Citibank Global Markets, Inc. v. Rodriguez Santana, 573 F.3d 17, 29 (1st Cir. 2009).
Banco Popular thus explains that Plaintiffs have failed to plead facts which would prove the "bad faith" of Defendants. Rather, they claim that Plaintiffs cling to general "bad faith" accusations. As alleged by Banco Popular, these accusations include, for example, that "[c]onsumers who were rejected from ... modification plans through no fault of their own should find themselves in no worse position than they entered it. Instead, Defendant's failure to honor its agreements and its misrepresentations and omissions about a program ... have left Plaintiffs and Class Members financially devastated." Docket No. 96 at 9 (citing Docket No. 5 at 8). Nonetheless, Plaintiffs have declined to include any explicit mention of how Banco Popular acted in bad faith or which obligations and loan servicing functions Banco Popular failed to fulfill; thus, Plaintiffs' claims fail as a matter of law. See Maceira-Lopez v. Doral Financial Corp. , 2012 WL 5986549, at *8 (D.P.R. 2012) ; see also , Kolbe v. BAC Loans Servicing, LP , 738 F.3d 432, 454-455 (1st Cir. 2009) (dismissing claims against a mortgagee for breach of mortgage contract and of implied covenant of good faith and fair dealing as Plaintiffs allegations, that mortgagee's failed to comply with the requirements of obtaining extra flood insurance in compliance with FEMA's guidance, "fail to make out any claim for a breach of the lender's contractual commitments, express or implied.").
In their Response in Opposition to Motions to Dismiss , Plaintiffs failed to provide any specificity as to how Banco Popular's actions were to be considered a breach of implied covenant of bad faith. See Docket No. 137.
3. Plaintiffs' TILA Claim Fails as a Matter of Law
Banco Popular contends that there is no specific instance of a "TILA claim" included in the First Amended Complaint , and state that Plaintiffs fail to mention their TILA claims in the "Nature of Action" and "Class Allegations" sections. Banco Popular likewise explains that the only reference to TILA in the First Amended Complaint is in a section titled "Purpose of the Truth in Lending Act," which provides statutory clauses related to TILA. See Docket No. 5 at 11-22. To wit, Banco Popular states that "[n]ot once in those ten pages are there any allegations, conclusory or otherwise." Docket No. 96 at 9. The Court notes, as does Banco Popular, that this recital of statutory clauses is insufficient to properly state a plausible claim for relief. See Ocasio-Hernandez , 640 F.3d at 12.
In their Response in Opposition to Motions to Dismiss , Plaintiffs failed to amend the faulty allegations claimed by Banco Popular and/or include any specific reference related to the TILA claims and their connections with each Plaintiff. See Docket No. 137.
4. Plaintiffs' RESPA Claim Fails as a Matter of Law
Banco Popular likewise argues that the "Real Estate Settlement Procedures Act" ("RESPA") claims do not appear in the First Amended Complaint. Plaintiffs' only reference of said claims is a section titled " 'Real Estate Settlement Procedures Act' (hereinafter "RESPA") and Regulation X of the 'Consumer Financial Protection Bureau'." However, this section, as the TILA section discussed supra , merely provides a recitation of different statutory provisions. See Docket No. 5 at 27-31. It therefore also fails to provide a connection between RESPA's provisions and the claims for which relief can be granted for each Plaintiff. As highlighted by Banco Popular, the First Amended Complaint does not cite a single instance wherein Banco Popular can be found responsible of violating RESPA claims and evading RESPA allegations.
In fact, the only instance where Plaintiffs refer to Defendants in general in regards to RESPA claims, offers a disjointed and conclusory statement instead. This fact is evidenced when Plaintiffs state in their First Amended Complaint that in regards to RESPA and Regulation X requirements, if the Plaintiffs were to comply "with all the requirements ..., the Defendants would be placed, not only in their legal obligation to consider the Plaintiffs request for loss mitigation, but also, if the Defendants refused to comply with the protocol, appearing would be in their full right to initiate the corresponding claim action for damages." Docket No. 5 at 30.
District and circuit courts have been resolute in stating that general statements such as these do not suffice to survive RES