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United States District Court, Third Circuit
September 25, 2013
JAMES DANIEL SPORISH, et al., Plaintiffs,v.COUNTY OF DELAWARE, PENNSYLVANIA, et al., Defendants.
Plaintiff James Daniel Sporish is incarcerated. He is the father of Nicole Sporish. While Nicole Sporish was in the custody of her mother, she was the subject of dependency proceedings in the Court of Common Pleas of Delaware County, Pennsylvania. Ultimately, these proceedings resulted in her removal from her mother's custody and her placement with Children Youth Services of Delaware County.
Plaintiff believes his civil rights as a father were violated by the way the dependency proceedings were handled, and he filed the instant lawsuit to vindicate his rights. His claims are based on the length of the proceedings, including hearing postponements, the failure to ensure his "video presence" at every hearing, and the inability to have his daughter's custody transferred to his parents who reside in New Jersey. He also makes other related claims.
Proceeding pro se, Plaintiff filed the instant civil rights suit on behalf of himself and his daughter[1] against Delaware County, Children Youth Services of Delaware County ("CYS"), [2] and individual CYS employees Deirdre Gordon (Administrator), Christine Murphy (Supervisor), Margaret Amoroso (Legal Department Supervisor), Beverley White (Legal Department Intake Supervisor), and Summer Fowlkes (Case Worker).
Presently before the Court is the Joint Motion of Defendants to Dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court will grant the Motion to Dismiss.[3]
The following facts are recited in a light most favorable to Plaintiff. Plaintiff James Sporish and Vanessa Onuffer are the biological parents of Nicole Sporish, a minor. (Doc. No. 3 at 6.) Since 2007, Plaintiff has been incarcerated at Albion State Correctional Institution. (Doc. No. 3 at 6; Doc. No. 13-1 at 2.) Prior to the events giving rise to this suit, Nicole was under the care of her mother. (Doc. No. 3 at 7.)
In July 2011, Children Youth Services of Delaware County ("CYS") began monitoring Vanessa Onuffer's care of her daughter. (Doc. No. 3 at 6-7, 75.) The CYS investigation was conducted by Defendants Summer Fowlkes and Christine Murphy, and raised suspicions that Ms. Onuffer had severe mental health, drug, and alcohol-related problems. Suspicions were also raised that Onuffer was abusing or neglecting Nicole. (Doc. No. 3 at 6-7.) With the approval of Defendants Deirdre Gordon and Margaret Amoroso, CYS petitioned the Juvenile Division of the Court of Common Pleas of Delaware County (the "juvenile court") to adjudicate Nicole Sporish a dependent child, which would allow CYS to remove her from her mother's custody. (Doc. No. 3 at 7, 75.) Classifying Nicole Sporish as a dependent, however, would put her at risk of being placed in the foster care system. (Id.) Because of this risk, CYS suggested to the court that Nicole could possibly remain in Onuffer's care if Onuffer abided by certain measures. (Id.) As a result, in September 2011, CYS withdrew its initial dependency petition filed in juvenile court. (Doc. No. 3 at 76.)
While the petition was pending, a guardian was appointed for Nicole. In view of this appointment and the proceedings involving Nicole to that point, Plaintiff feared his daughter would be placed in foster care. (Doc. No. 3 at 7-9.) He therefore sent a letter to the court-appointed guardian with contact information for his parents in New Jersey. (Id.) In the letter, Plaintiff expressed his desire that his side of the family, which he referred to as the "family resource, " take part in Nicole Sporish's life. (Doc. No. 3 at 65.) Plaintiff also sent this same contact information to CYS. (Id.)
On December 2, 2011, CYS submitted a second dependency petition to the juvenile court, and Plaintiff once again wrote to CYS about his "family resource." (Doc. No. 3 at 7-8, 76.) The hearing on this petition was originally scheduled for December 13, 2011, but was continued by the juvenile court several times and finally scheduled for March 6, 2012. (Doc. No. 3 at 73; Doc. No. 13-2 at 5-7, 8-13; Doc. No. 27 at 23-25.) On that date, Nicole Sporish was still in the custody of her mother, and at the request of Vanessa Onuffer's counsel, the March 6th date was rescheduled to a "date to be determined." (Doc. No. 13-2 at 14-16.)
In February 2012, before the March 6th date was continued, a phone call took place between Plaintiff and Defendant Fowlkes. (Doc. No. 3 at 9.) During this call, Plaintiff described his "family resource" and requested that Plaintiff be present at all hearings related to his daughter. (Id.) After Plaintiff stated his preference for Nicole Sporish to live with his family rather than be placed in foster care, Defendant Fowlkes informed him of the relevant conversations she had had with her supervisor, Defendant Murphy. (Id.) Specifically, because Plaintiff's parents resided in New Jersey, Defendants Fowlkes and Murphy recognized the necessity to comply with the Interstate Compact on the Placement of Children ("ICPC").[4] New Jersey authorities would have to be notified and give their approval for Nicole to be placed into out-of-state custody. (Id.) Defendant Fowlkes told Plaintiff that her supervisor, Defendant Murphy, had contacted the New Jersey authorities and learned that an ICPC would take from six months to a full year to be processed. (Id.) Defendant Fowlkes told Plaintiff she would immediately submit the ICPC paperwork and also inquire if there were any other procedures available to enable his parents to have temporary custody of Nicole. (Doc. No. 3 at 10.)
On March 28, 2012, at Defendant Murphy and Defendant Fowlkes' request, Defendants Gordon and Amoroso filed an application with the juvenile court to take Nicole Sporish into emergency protective custody. (Doc. No. 3 at 10, 76.) A juvenile court judge then entered an emergency protective custody order, and CYS and the police removed the child from her mother's care. (Doc. No. 3 at 10, 15, 77.) A hearing was held the next day, as required by statute, and the presiding Master gave legal and physical custody of Nicole Sporish to CYS. (Doc. No. 13-3 at 2-4.) The juvenile court judge ratified the Master's recommendation on March 30, 2012. (Doc. No. 13-3 at 4.) Plaintiff was not present at any hearing on the emergency petition.
Following the events of late March, Plaintiff again spoke with Defendant Fowlkes. (Doc. No. 3 at 10.) Defendant Fowlkes informed him that she had spoken to his parents about their willingness to take on Nicole. She said the ICPC had not yet been sent to New Jersey, but would be sent soon, and also explained that there might be alternative channels beyond the ICPC process to give his parents custody. (Doc. No. 3 at 11.) Plaintiff informed her that he wanted his mother to attend the dependency hearing scheduled for April 17, 2012, even if she had to be subpoenaed. (Doc. No. 3 at 12; Doc. No. 13-3 at 3.)
The April 17th hearing was ultimately continued, but Plaintiff's mother told him she had been instructed by Defendant Fowlkes and her supervisor not to attend the hearing. (Doc. No. 3 at 12, 73.) Plaintiff wrote to the juvenile court judge, requesting counsel and informing him that Plaintiff believed his "rights were being violated and (CYS) was ignoring the [family] resource." (Doc. No. 3 at 12.)
On May 16, 2012, the juvenile court judge appointed counsel for Plaintiff. (Doc. No. 13-4 at 2-3.) Plaintiff's mother informed him that Defendant Fowlkes had contacted her to schedule a home visit for May 24, 2012, but CYS representatives had not shown up that day. (Doc. No. 3 at 13-14.) When she called Defendant Fowlkes to inquire about the failed home visit, Defendant Fowlkes informed her that she and her supervisor decided it was not necessary because they expected Nicole Sporish to be placed back with her mother by December 13, 2012. (Doc. No. 3 at 14.)
Defendant Fowlkes called Plaintiff at the prison around the end of May to let him know that CYS had decided not to submit the ICPC to New Jersey. (Id.) Plaintiff said he wanted to speak with the juvenile court judge. (Id.) On July 6, 2012, Defendants Gordon and Amoroso petitioned for a dependency hearing to be held on July 13, 2012. (Id.) The position of CYS, as supported by an investigation conducted by Defendants Murphy and Fowlkes, was that Nicole Sporish had no alternative to foster care and that both her legal and physical custody should remain with CYS. (Id.) Once more, Defendant Fowlkes allegedly instructed Plaintiff's mother not to attend the hearing. (Doc. No. 3 at 15.)
On July 13, 2012, the dependency hearing for Nicole Sporish was held in juvenile court. Plaintiff was present by video conference, as was his court-appointed counsel. (Doc. No. 3 at 15, 73.) During the hearing, Defendant Fowlkes testified about the various discussions she had with the Plaintiff and his parents, and she informed the court that she did in fact intend to submit the ICPC to New Jersey, contrary to what she had told Plaintiff earlier. (Doc. No. 3 at 15-16, 54.) The attorney for CYS explained that the ICPC could not be sent to New Jersey, however, until Nicole Sporish's dependency status was adjudicated by the juvenile court. (Doc. No. 3 at 16, 59.) The juvenile court judge concluded the hearing by finding Nicole Sporish to be a dependent and ordering her to remain in CYS custody. (Doc. No. 3 at 16.)
On August 30, 2012, a new CYS caseworker filed the ICPC paperwork. (Doc. No. 3 at 15.) The new caseworker visited the home of Plaintiff's parents and found it met all relevant requirements. (Doc. No. 3 at 17.) A permanency hearing was then held on September 28, 2012 and Plaintiff was again present by video conference. (Doc. No. 3 at 17, 73.) At the hearing, Plaintiff's mother testified about her willingness to care for her grandchild; the new caseworker testified about her home study visit; Nicole Sporish's attorney explained that she did in fact want to live with her grandparents; and Vanessa Onuffer's attorney said there was no objection to Nicole Sporish living with her grandparents. (Doc. No. 3 at 17-18.) Plaintiff's appointed counsel claimed that the ICPC procedures were not required in Nicole's case. (Doc. No. at 18.) At the conclusion of the hearing, however, the juvenile court judge ordered CYS to retain custody of Nicole Sporish until the ICPC process had concluded. (Doc. No. 3 at 18-19.) The judge also ordered New Jersey to accelerate the ICPC process. (Id.)
As a result of these lengthy proceedings involving his daughter, Plaintiff filed the instant civil rights lawsuit against Delaware County and individual CYS employees Deirdre Gordon, Christine Murphy, Margaret Amoroso, Beverley White, and Summer Fowlkes (collectively referred to as "CYS employees"). (Doc. No. 3 at 1.) The Complaint alleges the following violations:[5]
Count I — 42 U.S.C. § 1983, Fourteenth Amendment Due Process claim against CYS employees, for misrepresenting the facts about the family resource in petitions to the juvenile court in such a way as to make the court believe Plaintiff was disinterested in his daughter's well-being.
Count II — 42 U.S.C. § 1983, Fourteenth Amendment Due Process claim against CYS employees, for misrepresenting Pennsylvania law to Plaintiff, his family, and the juvenile court in order to lead the court to believe there was no one available to care for Nicole Sporish.
Count III — 42 U.S.C. § 1983, Fourteenth Amendment Due Process and Equal Protection claims against CYS employees and Delaware County, for excessively delaying dependency hearings which led the juvenile court to believe there was no family that could take in Nicole Sporish and resulted in her ultimately being adjudicated as dependent.
Count IV — 42 U.S.C. § 1983, Fourteenth Amendment Due Process and Equal Protection claims against CYS employees and Delaware County, for failing to secure Plaintiff's presence by video conference at every hearing which, had it been done, would have enabled Nicole Sporish to live with her grandparents rather than in foster care and prevented further dependency proceedings.
Count V — 42 U.S.C. § 1983, Fourteenth Amendment Due Process and Equal Protection claims against CYS employees, for submitting perjured recommendations in petitions to the juvenile court that listed foster care as the least restrictive placement for Nicole Sporish when in actuality there were family members willing to care for her.
Count VI — 42 U.S.C. § 1983 and 42 U.S.C. § 1985, a conspiracy to violate due process claim against CYS employees.
Count VII — 42 U.S.C. § 1985, against CYS employees, for conspiring to deprive Plaintiff of equal protection of the laws because of his status as a convicted criminal by treating him differently than they would other parents with children undergoing dependency proceedings.
Count VIII — 42 U.S.C. § 1983, Fourteenth Amendment Due Process and Equal Protection claims against CYS employees, for maliciously misapplying state law to prevent family members from having custody of Nicole Sporish.
Count IX — Monell claim, against Delaware County for failing to properly train child welfare workers and supervisors to follow proper procedures.
Count X — Negligent Infliction of Emotional Distress, against Delaware County.
Count XI — Intentional Infliction of Emotional Distress, against Delaware County.
(Doc. No. 3 at 23-48.)
Defendants now jointly move to dismiss the Complaint in its entirety for failure to state a claim that would warrant relief.[6]
To survive a motion to dismiss, a plaintiff's complaint must state a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Iqbal, the leading case on the matter, explained that this plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." Id. at 678. This means that a simple recitation of the elements of a claim, accompanied by conclusory statements of law, will not suffice. Id. (citing Twombly, 550 U.S. at 555).
Applying this principle, in Malleus v. George, the Third Circuit explained that the inquiry requires that a district court: "(1) identify[ ] the elements of the claim, (2) review[ ] the complaint to strike conclusory allegations, and then (3) look[ ] at the well-pleaded components of the complaint and evaluat[e] whether all of the elements identified in part one of the inquiry are sufficiently alleged." 641 F.3d 560, 563 (3d Cir. 2011). Elements are sufficiently alleged when the facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
In deciding a motion to dismiss, a court may consider the complaint, "documents that are attached to or submitted with the complaint, and any 'matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.'" Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004)). Additionally, "'a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.'" Dougherty v. Wells Fargo Home Loans, Inc., 425 F.Supp.2d 599, 602-03 (E.D. Pa. 2006) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
A. CYS Employees are Entitled to Absolute Immunity from Federal Claims
In Counts I through VIII, Plaintiff claims that CYS employees violated his Fourteenth Amendment rights by the way they handled his daughter's dependency proceedings. Because the five employees of CYS are entitled to absolute immunity, the Court will dismiss all federal claims against them.[7]
Absolute immunity is a defense "[f]or officials whose special functions or constitutional status requires complete protection from suit." Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (citations omitted). The doctrine has long been associated with judges and prosecutors. See Butz v. Economou, 438 U.S. 478, 513-515 (1978). Absolute immunity has also been extended to include "agency officials performing certain functions analogous to those of a prosecutor." Id. at 515. This extension is grounded in the idea that "agency officials must make the decision to move forward with an administrative proceeding free from intimidation or harassment." Id. at 516. Moreover, there are usually "legal remedies already available to the defendant in such a proceeding [that] provide sufficient checks on agency zeal." Id.
In Ernst v. Child & Youth Servs. of Chester Cnty., 108 F.3d 486, 495 (3d Cir. 1997), the Third Circuit held "child welfare workers" are entitled to absolute immunity "for their actions on behalf of the state in preparing for, initiating, and prosecuting dependency proceedings." In reaching this decision, the Third Circuit reasoned that there are certain parallels between prosecutors and child welfare employees:
(1) the functions performed by [child welfare workers] in dependency proceedings are closely analogous to the functions performed by prosecutors in criminal proceedings; (2) the public policy considerations that countenance immunity for prosecutors are applicable to child welfare workers performing these functions; and (3) dependency proceedings incorporate important safeguards that protect citizens from unconstitutional actions by child welfare workers.
Id. at 495.[8] The court noted that the immunity extended to child welfare workers "is broad enough to include the formulation and presentation of recommendations to the court in the course of such proceedings." Id.
However, in B.S. v. Somerset Cnty., 704 F.3d 250 (3d Cir. 2013), the Third Circuit stated that its holding in Ernst "[did] not insulate from liability all actions taken by child welfare caseworkers." Id. at 270 (citing Ernst, 108 F.3d at 497 n.7). Before finding a child welfare worker is entitled to absolute immunity, a court must scrutinize "the underlying function that the investigation serves and the role the caseworker occupies in carrying it out" and ensure that the worker is acting in a prosecutorial capacity. Id. (citations omitted). Actions taken outside of that capacity are not protected. Id. (citations omitted).
In Somerset Cnty., a mother brought her child in to see a doctor and the doctor, noticing the child was underweight, contacted Somerset County Children and Youth Services. Id. at 254-255. The employees of the organization then engaged in a cycle of investigation, filing reports, explaining findings to a judge, and "prepar[ing] a corresponding court order to suspend Mother's contact with Daughter and transfer the child to Father's custody." Id. at 254-259. After losing custody, the mother filed suit based upon alleged constitutional violations. Id. at 253.
None of the claims against the individual Somerset County caseworkers were successful. Id. at 270. The court applied the principle expounded in Ernst that "absolute immunity for child welfare employees is appropriate when the employee in question 'formulat[es] and present[s] . . . recommendations to the court' with respect to a child's custody determination, even if those recommendations are made outside the context of a dependency proceeding." Id. at 265 (quoting Ernst, 108 F.3d at 495) (emphasis added). Because the individual employees in Somerset Cnty. took actions that were "fundamentally prosecutorial, " they were entitled to absolute immunity. Id. at 270.
On the other hand, in Holloway v. Brush, 220 F.3d 767 (6th Cir. 2000), a Sixth Circuit case applying the principles of Ernst, the court concluded that absolute immunity was not available for certain actions carried out by a child welfare worker. Id. at 776. The Holloway case involved a parent who did not have custody of her children, yet wanted to act on her parental rights, and when she was denied custody, filed suit against the county and individual child welfare workers for their handling of the proceedings related to her children. Id. at 769. Because the employee took actions outside of the "judicial process" that entailed "failing to tell the court that [the mother] had appeared and wished to assert her parental rights, lying to [the mother] about her rights, and failing to inform [the mother] that the matter was still pending, " the Sixth Circuit held that the welfare worker was not entitled to absolute immunity. Id. at 777. The Sixth Circuit, relying on Ernst, explained:
In Ernst, the court had the opportunity to evaluate the caseworkers' actions and to accept or reject their suggestions. In the case before us, [the caseworker's] actions denied the court the opportunity to accept or reject the results of her judgment. A jury could reasonably find that [the caseworker] appropriated the entire judicial process to herself by hiding Holloway and the court from each other and feeding them inaccurate information by act (in Holloway's case) and omission (in both cases). Even granting arguendo that [the caseworker's] actions were motivated by her "formulations of professional judgment, " the actions themselves bear no resemblance to recommendations made to the court. They were, rather, usurpations of the court's authority.
Id. (emphasis in original). The court thus emphasized that the basis for absolute immunity is advocacy, id. at 775, which was obviously lacking in Holloway.
In the instant case, Plaintiff alleges that the CYS employees misrepresented the facts about Nicole Sporish's case and the relevant law in petitions to the juvenile court, to Plaintiff, and to his family; excessively delayed dependency hearings; failed to secure Plaintiff's presence by video conference at every hearing; committed perjury; did not expeditiously place Nicole Sporish with Plaintiff's family; and conspired together to perform all the preceding actions.
Like the child welfare workers in Somerset Cnty., the CYS employees are entitled to absolute immunity. The conduct of CYS employees that Plaintiff complains of occurred directly within the context of a judicial proceeding, namely, Nicole Sporish's dependency determination. Unlike the secretive goings-on in Holloway, the scheduling of hearings, who was present at hearings, and the submission of petitions were not "hidden" from the juvenile court. The juvenile court was highly involved. Ultimately, the juvenile court judge followed the recommendations of the CYS employees, found Nicole Sporish to be a dependent, and ordered her to remain in CYS custody despite the family resource.[9] Thus, the CYS employees acted as advocates in these proceedings and are covered by absolute immunity.
The only events that arguably occurred outside the dependency proceedings were the phone calls between CYS employees and Plaintiff or Plaintiff's family. These phone calls, however, were made in order to investigate and prepare for the dependency proceeding. For instance, during the February 2012 phone call, a CYS employee called Plaintiff to inquire about the "family resource" and then learned that the "family resource" would be unable to obtain custody of Nicole Sporish without the completion of the ICPC. The challenged phone calls here are very different from the actions of child services employees in Holloway, who had fully excluded a mother from her children's custody proceedings.
In sum, all actions taken by CYS employees were in furtherance of dependency proceedings. The employees were acting in their capacity as advocates for Delaware County in dealing with a neglected child, and are entitled to absolute immunity. Therefore, the Court will dismiss all federal claims—Counts I through VIII—against CYS employees.
B. Plaintiff Has Not Adequately Pled Federal Due Process Claims Against Delaware County
Counts III and IV of the Complaint allege Delaware County violated Plaintiff's due process rights by failing to secure his presence at all hearings and for the excessive delay in the dependency proceedings. For the following reasons, Plaintiff has failed to adequately plead a procedural due process claim against Delaware County.[10]
The Fourteenth Amendment protects citizens against State deprivation of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. The right to due process "imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332 (1976). In order to state a procedural due process claim, "a plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of 'life, liberty, or property, ' and (2) the procedures available to him did not provide 'due process of law.'" Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)).
Regarding the first element of a procedural due process claim, courts have long recognized that parents do have a constitutionally protected liberty interest in the "custody, care and management of [their] children." Studli v. Children & Youth and Families Cent. Reg'l Office, 346 F. App'x 804, 812 (3d Cir. 2009) (citation omitted). Even in cases where the state has interim custody of a child, "[p]arents . . . maintain a protected liberty interest in a relationship with their children." Santos v. Sec'y of D.H.S., No. 10-7266, 2012 WL 2997036, at *11 (E.D. Pa. July 23, 2012), aff'd, No. 12-4151, 2013 WL 1749474 (3d Cir. Apr. 24, 2013). A non-custodial parent, such as Plaintiff in this case, also "has a liberty interest in his right to communicate with and visit the child." Id. (citations omitted). However, a parent's right is not absolute but "must 'be balanced against the state's interest in protecting children suspected of being abused.'" Somerset Cnty., 704 F.3d at 271 (quoting Miller v. City of Phila., 174 F.3d 368, 373 (3d Cir. 1999)). Regarding the second element of a procedural due process claim, "'the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.'" Santos, 2012 WL 2997036, at *11 (quoting Miller, 174 F.3d at 373).
In Santos, a case with facts similar to those alleged here, the court dismissed a civil rights complaint filed by an incarcerated father for failure to state claims upon which relief could be granted. 2012 WL 2997036, at *1. Approximately one month after the plaintiff was arrested for a criminal violation, his children, who had been living at home alone since his arrest, were placed in the custody of his sister by a local children and family services agency. Id. at *2. After the plaintiff learned that his sister was being physically abused by her boyfriend, he requested that the agency remove his children from her care and place them with another family member. Id. The agency did remove the children, but instead of placing them with a family member, the agency placed them in foster care. Id. Plaintiff was then informed that his children were living with a foster family, and, several months later, he was given notice that the agency had filed a Petition for Finding of Involuntary Termination of Parental Rights in state court. Id. The plaintiff was provided with counsel prior to the hearing. Id. At the hearing, the plaintiff's parental rights were terminated and the foster family ultimately adopted his children. Id. Plaintiff then filed a complaint against the agency and others alleging due process violations, among other constitutional violations. Id.
The court in Santos dismissed the alleged due process violations for failure to state a claim. The court explained:
In this case, Plaintiffs' Amended Complaint fails to allege that their procedural due process rights were violated during the termination hearing. On the contrary, Plaintiff Santos confirms that he was notified about the hearing to terminate his parental rights prior to the hearing date. Plaintiffs' Amended Complaint is devoid of any allegation that Defendant [agency] prevented Plaintiff Santos from voicing his concerns and requests during the hearing.
Id. at *11 (internal citations omitted).
Here, as in Santos, the Complaint is "devoid of any allegation" that Plaintiff was prevented "from voicing his concerns and requests" during his daughter's dependency proceeds, regardless of any delay in scheduling hearings. See id. at *11. It is noteworthy that Plaintiff did not have custody of Nicole Sporish during the relevant time period. Nor does Plaintiff contend that his daughter was unlawfully removed from her mother's custody. Rather, Plaintiff's claims are based on the fact that Nicole Sporish was not placed with her grandparents at the conclusion of the dependency proceedings.
Throughout the dependency process, Plaintiff was provided with meaningful opportunity to make his preferences known about the placement of Nicole Sporish. First, he was provided counsel by the court for the July 13th dependency hearing and the September 28th permanency hearing. Second, he was present by video conference at both hearings, and his request that Nicole Sporish reside with his parents was heard and discussed with the court.[11] Finally, at the September 28th hearing, although the court did not place Nicole Sporish with her grandparents, the court did order the ICPC process expedited. Thus, the possibility remains open that Plaintiff's daughter could reside with her grandparents at a future time. Based on these factual allegations, Plaintiff had "the opportunity to be heard at a meaningful time and in a meaningful manner" as required under the due process clause. See Miller, 174 F.3d at 373 (quotation marks and citation omitted). Consequently, Counts III and IV alleging due process violations against Delaware County will be dismissed.
C. Insufficient Allegations to Support Monell Claim Against Delaware County
Count IX of the Complaint alleges Delaware County failed to properly train CYS employees on how to handle a case such as Nicole Sporish's. In the landmark case Monell v. Dep't. of Social Servs. of City of New York, 436 U.S. 658 (1978), the Supreme Court described how § 1983 liability applies to local governments:
[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
Id. at 694. In a subsequent case, City of Canton, Ohio v. Harris, 489 U.S. 378 (1989), the Court noted how the "first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." Id. at 385. The Court also noted in City of Canton that "there are limited circumstances in which an allegation of a 'failure to train' can be the basis for liability under § 1983." Id. at 387. Specifically, "only where a municipality's failure to train its employees in a relevant respect evidences a 'deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city 'policy or custom' that is actionable under § 1983." Id. at 389. The weakness of the training needs to be strongly tied to the harm caused to the plaintiff. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 582 (3d Cir. 2004) (citing City of Canton, 489 U.S. at 391).
In sum, a sufficient failure to train claim would "identify a failure to provide specific training that has a causal nexus with [a plaintiff's] injury and [would] demonstrate that the failure to provide that specific training can reasonably be said to reflect a deliberate indifference to whether constitutional deprivations of the kind alleged occur." Colburn v. Upper Darby Twp., 946 F.2d 1017, 1030 (3d Cir. 1991).
In addition, deliberate indifference has been described as follows:
[It is a] stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action. Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program. The city's policy of inaction in light of notice that its program will cause constitutional violations is the functional equivalent of a decision by the city itself to violate the Constitution.
Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011) (internal quotations and citations omitted) (emphasis added). "A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." Id. (citations omitted). Alternatively, a showing of deliberate indifference can be made without evidence of a general pattern so long as there is blatancy. See, e.g., Connick, 131 S.Ct. at 1361 ("[T]he unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations.").
Deliberate indifference is a challenging standard to meet. For example, in Dennis v. DeJong, 867 F.Supp.2d 588 (E.D. Pa. 2011), parents sued a number of parties for what had occurred during abuse-related proceedings involving their infant son. The plaintiffs put forth a number of allegations, including an allegation that "Pennsylvania law and due process require[d] that a dependency hearing be held within 10 days after the dependency petition, not more than four months" later and that "CYS' misrepresentations that [plaintiffs'] parents were not available to care for [their son] violated [a] duty of candor and due process." Id. at 655.
The Dennis court dismissed the failure to train claim. In reaching this conclusion, the court first noted that one employee doing a poor job at scheduling did not necessarily amount to "a persistent and widespread practice or custom of Delaware County." Id. at 636 (citations omitted). Moreover, "the factual averments regarding Delaware County's policy, custom, or practice [were] nothing more than 'bald assertions' which fail to state a claim upon which relief can be granted." Id. (internal citations omitted). The court held that the "plaintiffs [had] not pled a pattern of constitutional violations by untrained employees or that Delaware County or its employees acted with the requisite deliberate indifference." Id. at 656.
Similar to the plaintiffs in Dennis, Plaintiff's factual allegations are insufficient to state a failure to train claim. The Complaint simply repeats part of the law comprising a Monell failure to train claim and then makes stark conclusions such as "had Delaware County properly trained their employees, they would have known that . . . the statute mandates a dependency hearing within 10 days, of the filing of such petition" and "that any facts submitted to the courts may be subject to perjury." (Doc. No. 3 at 44.) These allegations also show, at best, an isolated instance of poor scheduling and a conclusory statement about perjury that, even when considered alongside Dennis, does not amount to "a persistent and widespread practice or custom of Delaware County." In view of the patient efforts made by the County employees on behalf of Nicole Sporish, their efforts to communicate with Plaintiff about his daughter, the appointment of counsel for Plaintiff, and his presence and opportunity to be heard in juvenile court, no deliberate indifference has been shown by Plaintiff. No blatant conduct has been established. Only "bald assertions" are made which, as in Dennis, are insufficient to state a failure to train claim. Therefore, the Monell failure to train claim against Delaware County will be dismissed.
Based on the foregoing reasons, the Court will grant Defendants' Motion to Dismiss the Complaint for failure to state a claim.
An appropriate Order follows.
AND NOW, this 18th day of September 2013, upon consideration of Defendants' Motion to Dismiss (Doc. No. 13), Plaintiff's Responses in Opposition (Doc. Nos. 18 and 27), Defendants' Reply (Doc. No. 20), and in accordance with the Opinion of the Court issued this day, it is ORDERED that:
1. Defendants' Motion to Dismiss (Doc. No. 13) is GRANTED.
2. Plaintiff's Motions for Appointment of Counsel (Doc. Nos. 6, 11, and 22) are DENIED.[1]
3. Any outstanding motions are DENIED AS MOOT.
4. The Clerk of Court shall close the above-captioned matter.
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Appeal from the Superior Court of Cook county; the Hon. DONALD
S. McKINLAY, Judge, presiding. Affirmed.
Defendant appeals from a judgment awarding a writ of mandamus against it, to compel the transfer to plaintiff of a certificate of stock, upon the books of the corporation.
It appears from the evidence that Joseph and Meyer Cohen were in the automobile finance business and had many dealings with the Belmont National Bank through Henry Beutel, its president. They approached Beutel to help them finance the purchase of the Parkway Hotel. Negotiations with Beutel resulted in financial assistance to the two Cohens through the banks controlled by Beutel, and the consummation of the purchase.
The defendant corporation was formed with a total authorized issue of 100 shares, par value $10 each, and the title to the hotel property was conveyed to the corporation, which in turn executed a purchase money second mortgage to secure the purchase price. Sixty-six and two-thirds shares were issued and held by nominees of the Cohens. Certificate No. 8 for thirty-three and one-third shares was issued in the name of Amelita Griebel, nominee of and secretary to Beutel. Stock certificate No. 8 was thereafter cancelled, and in its stead certificate No. 9 for thirty-three and one-third shares (the subject of dispute in the instant action) was issued to Maurice J. Sherow. The cancelled certificate No. 8 bore the endorsement of Amelita Griebel. It is evident that Sherow, who had a number of financial transactions with Beutel, acquired certificate No. 8 from Beutel.
It is undisputed that the Cohens acquired the control and complete management of the defendant corporation and the hotel property. They knew of the cancellation of certificate No. 8 and the issuance of certificate No. 9, because certificate No. 9, dated December 2, 1952, issued to Sherow, is signed by Meyer Cohen, as president, and Beulah R. Lantz, as secretary. This certificate, on the reverse side, was assigned and transferred to plaintiff by Maurice J. Sherow, and tendered by plaintiff to defendant corporation for transfer. The corporation refused to transfer the certificate, which resulted in the bringing of the instant action.
The special defenses set up by the answer to the complaint are that the certificate was never delivered by Sherow to plaintiff; that the Cohens claimed to be the owners of said certificate; that there was no valuable consideration passed between plaintiff and Sherow for said certificate; and that Meyer and Joseph Cohen are the legal and equitable owners of said certificate, having paid all of the notes to the West Irving State Bank, of which Beutel was president, and which allegedly had held said certificate as collateral security for the indebtedness to it.
The issuance of certificate No. 9 to Sherow is hardly consistent with the claim made by the Cohens that they are the equitable owners of the certificate in question. If it be true, as they contend, that certificate No. 8 was held as collateral security for the indebtedness to the West Irving State Bank, then why would they consent to a transfer of that certificate and the issuance of certificate No. 9 to Sherow? It would seem logical that before they issued certificate No. 9, they would inquire of Sherow as to what interest he had in certificate No. 8, and would refuse to issue certificate No. 9 if Sherow laid claim to the certificate as owner. There is no evidence of any such inquiry made before issuing certificate No. 9.
The Uniform Stock Transfer Act (Ill. Rev. Stat., Ch. 32, par. 416, § 1) provides that title to a certificate can be transferred by delivery of the certificate, endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner thereof. Paragraph 421, § 6, provides that the endorsement of a certificate by the person appearing by the certificate to be the owner is effectual (except as provided in § 7 [Ill. Rev. Stats. 1955, ch. 32, § 422]), though the endorser or transferor (d) has received no consideration. Section 7 sets up the various instances in which the endorsement or delivery of a certificate may be reclaimed by appropriate proceedings in court. None of the reasons set up in § 7 are either claimed by defendant or applicable in the instant action. The claim that no valuable consideration passed between plaintiff and Sherow is therefore without merit and furnishes no defense to the demand for a transfer under the statute. In any event the evidence sufficiently establishes a valuable consideration for the assignment of certificate No. 9 to plaintiff.
There is no merit in the contention that plaintiff failed to prove the genuineness of the signature to the assignment of the instant certificate. The Mandamus statute (Ill. Rev. Stat., Ch. 87, § 11) makes the Civil Practice Act applicable to proceedings thereunder. The Civil Practice Act (Ch. 110, § 35 (2) [Ill. Rev. Stats. 1955, ch. 110, § 35, subd. (2)]) provides:
"The allegation of the execution or assignment of any written instrument is admitted unless denied in a pleading verified by oath, . . . If the party making the denial is not the person alleged to have executed or assigned the instrument, the denial may be made on the information and belief of that party."
The answer of defendant does not deny the genuineness of the execution or the assignment of the certificate in question, as alleged in the complaint, therefore the genuineness stands admitted. Feltinton v. Rongetti, 337 Ill. App. 383.
The claim that the Cohens were necessary parties to the action is without merit. It clearly appears that they knew of the pendency of the action, employed counsel to defend it, and obviously furnished to counsel the information that they made claim to the certificate in question. On behalf of the defendant they filed an answer making such claim, and appeared as a witness upon the trial of the cause. They are hardly in a position to now say that they should have been made parties to the proceeding. They did not apply to the court for leave to intervene, if they deemed it necessary, to set up their interests.
We think the record fully justifies the judgment, and it is affirmed.
KILEY, J., concurs.
LEWE, P.J., took no part.
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This franchise, with excellent name recognition, has been providing services for over 15 years. The franchise territory currently available has been active since 2009. The business holds a comprehensive license in the State of MN.
The current owners are actively involved in the business and have a good team of employees in place, including Care Givers, administrative help and RN's. The new owner does not need to have a background in healthcare. Rather, an owner with a strong business background that can help grow and manage the business is what is needed.
The current owners are looking to retire. SBA financing is available and the sellers are also willing to provide some financing. The franchisor will train a new buyer and the sellers will also assist in transitioning the business.
Financials (USD)
Asking Price $750,000
Sales $1,649,151
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October 21, 2009
NEIL L. SARSFIELD AND SHELLEY SARSFIELD, PLAINTIFFSv.CITIMORTGAGE, INC. S/B/M TO ABN AMRO MORTGAGE GROUP, INC. DEFENDANT
Before the court is Defendant Citimortgage, Inc.'s ("Citimortgage") motion to dismiss Plaintiffs Neil and Shelly Sarsfield's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. The parties have briefed the issues, and the matter is ripe for disposition. For the reasons that follow, the court will grant in part and deny in part Defendant's motion to dismiss, and will grant Plaintiffs leave to file an amended complaint.
I. Background
A. Facts
The following facts are taken from Plaintiffs' complaint and the attachments thereto. Plaintiffs are residents of Adams County, Pennsylvania who, on November 2, 2007, purchased a home located at 3125 Emmitsburg Road, Gettysburg, Pennsylvania, through a mortgage loan issued by ABN Amro Mortgage Group, Inc. ("ABN Amro"). Defendant is the successor by merger to ABN Amro.*fn1
Plaintiffs' decision to purchase this house was based on the Initial Escrow Account Disclosure Statement (the "initial disclosure") provided by Defendant which estimated their monthly mortgage payments as $3,053.37 per month. Of this amount, $524.19 per month would be placed into escrow to pay private mortgage insurance and real estate taxes on the property, and the rest would be applied to principal and interest. The initial disclosure estimated the yearly school taxes to be $1,577.88, and the yearly city and county taxes to be $546.82. Thus, the total real estate tax estimate was $2,124.70 per year.
On July 7, 2008, after they had purchased the house, Plaintiffs received a new Escrow Account Disclosure Statement from Defendant (the "subsequent disclosure"). The subsequent disclosure revealed that the yearly school tax was actually $4,143.08, and the yearly city and county taxes totaled $1,195.97. Thus, according to the subsequent disclosure, the total taxes were $5,339.05 per year, a difference of $3214.35 from the initial disclosure. The subsequent disclosure also revealed a total escrow shortage of $6,632.74 due to the initial disclosure's incorrect estimate of the applicable taxes. All of this caused Plaintiffs' monthly mortgage payments to increase from $3,053.37 per month to $3,878.24 per month.
Plaintiffs state that had they been provided with a more accurate estimate of their yearly tax obligations they would not have taken out the loan or purchased the house, and would not have incurred various expenditures in connection with the property. Plaintiffs raise two claims in their complaint. First, they assert that Defendant violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq., and the federal regulations implementing RESPA, 24 C.F.R. §§ 3500.7(c)(2) and 3500.17(g)(1)(i) and (k), because it did not conduct an escrow account analysis to reasonably estimate the amount of money that was needed in escrow. Second, Plaintiffs aver that Defendant was negligent when it provided them with the grossly underestimated initial disclosure. Specifically, Plaintiffs state that Defendant owed them a duty to use reasonable care in servicing the mortgage, including providing a reasonable estimate of the escrow expenses, and that they breached this duty causing them damages. Plaintiffs contend that this duty arose from the requirements of RESPA, as well as from the fact that Defendant assumed a special relationship with Plaintiffs. Plaintiffs seek actual and punitive damages for the alleged violations of RESPA and for Defendant's alleged negligence.
B. Procedural History
Plaintiffs filed their complaint on May 4, 2009. (Doc. 1.) Defendant filed its motion to dismiss, (Doc. 9), on July 6, 2009. Plaintiffs filed their brief in opposition to the motion to dismiss on July 21, 2009. No reply brief has been filed. The motion is now ripe for disposition.
II. Legal Standard
Among other requirements, a sound complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This statement must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). Phillips, 515 F.3d 224, 233 (3d Cir. 2008). If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," a complaint will survive a motion to dismiss. Twombly, 550 U.S. at 555, 570; Phillips, 515 F.3d at 234; see also Ashcroft v. Iqbal, ___U.S.___, 129 S.Ct. 1937, 1949 (explaining 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"). Further, when a complaint contains well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950. However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. (quoting Twombly, 550 U.S. at 555). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555).
"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit, 998 F.2d at 1196. Additionally, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) (citation omitted); see also U.S. Express Lines, Ltd. v Higgins, 281 F.3d 383, 388 (3d Cir. 2002) ("Although a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.") (internal quotation omitted). However, the court may not rely on other parts of the record in making its decision. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
III. Discussion
Defendant seeks dismissal of Plaintiffs' complaint in its entirety. It argues that Plaintiffs' RESPA count should be dismissed because there are inadequate facts pled to support a claim, and Plaintiffs' own documents reveal that the appropriate disclosures were made in connection with the loan. As for Plaintiffs' negligence claim, Defendant argues that it should be dismissed because there are insufficient facts pled demonstrating a duty on behalf of Defendant, and because there was no causation between any conduct by Defendant and Plaintiffs' claimed damages. Defendant also argues that Plaintiffs' negligence claim should be barred by the gist of the action doctrine. Alternatively, Defendant argues that if Plaintiffs' claims survive then their punitive damages claims must fail because (1) RESPA does not authorize punitive damages, and (2) there are insufficient facts supporting willful, wanton, or malicious conduct. The court will address each of these in turn.
Defendant asserts generally, that Plaintiffs have failed to state a RESPA claim because there are insufficient facts supporting their entitlement to relief. The crux of Defendant's argument appears to be that since the disclosures were timely made and were clearly labeled only as estimates, the fact that they may have been inaccurate is immaterial and Plaintiffs should not have relied on those estimates in deciding whether to purchase the house. In contrast, Plaintiffs argue that RESPA imposes an obligation upon lenders like Defendant to conduct an escrow analysis and provide an estimate of taxes that reasonably anticipates those items to be paid during the escrow account computation year, and Defendant's failure to do so renders it liable pursuant to 12 U.S.C. § 2614. Unfortunately, Plaintiffs' complaint is not a model of clarity concerning the substantive provisions of RESPA that they allege Defendant violated. To explain the confusion, the court will highlight a few provisions of Plaintiffs' complaint that are less than clear.
First, in Paragraph 16 of their complaint, Plaintiffs assert that Defendant is liable under 12 U.S.C. § 2614 for violations of 12 U.S.C. § 2605, and in Paragraph 17 Plaintiffs specifically mention § 2605(g). (Doc. 1, Compl., ¶¶ 16- 17.) However, it is not clear how the provisions of § 2605(g) are relevant to the factual allegations made by Plaintiffs. That sections states:
Administration of Escrow Accounts. If the terms of any federally related mortgage loan require the borrower to make payments to the servicer of the loan for deposit into an escrow account for the purpose of assuring payment of taxes, insurance premiums, and other charges with respect to the property, the servicer shall make payments from the escrow account for such taxes, insurance premiums, and other charges in a timely manner as such payments become due.
12 U.S.C. § 2605(g). Although Plaintiffs do state in Paragraph 20 of their complaint that Defendant failed to properly make timely escrow payments, they provide no factual support for this allegation. Instead, all of the facts in the complaint surround Defendant's alleged failure to conduct an initial escrow analysis and/or provide a tax estimate that realistically estimated the annual property taxes for this home. As the Supreme Court made clear in Iqbal, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" to state a cause of action. 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). Instead, Plaintiffs must plead facts that allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Thus, to the extent that Plaintiffs are asserting a cause of action for a breach of § 2605(g) and the alleged failure of Defendant to make timely escrow disbursements, they must allege some facts to support this allegation. They have not done so here, thus, their complaint is deficient and must be dismissed. However, because Plaintiffs deficiencies can possibly be cured with additional factual allegations, the court will grant Plaintiffs leave to file an amended complaint to provide sufficient facts which plausibly give rise to a cause of action under § 2605.
Second, in addition to § 2605(g), Plaintiffs' complaint alleges that Defendant violated various sections of the regulations implemented pursuant to RESPA. For instance, Plaintiffs allege that Defendant failed to properly conduct an escrow account analysis to determine the amount that they were required to deposit into their escrow account in violation of 24 C.F.R. § 3500.17(c)(2).*fn2 Additionally, Plaintiffs' complaint alleges that Defendant violated 24 C.F.R. § 3500.17(g)(1)(i)*fn3 by failing to provide an initial escrow account statement providing a reasonable estimate of the taxes, insurance premiums, and other charges that Defendant should have reasonably anticipated.
Plaintiff's complaint seems to suggest that these regulations relate to a lender's obligations under § 2605 of RESPA. While it is clear that § 2605(j)(3) required the Secretary of Housing and Urban Development to promulgate regulations, and those contained in 24 C.F.R. § 3500.17(c)(2) and 3500.17(g)(1)(i) were promulgated pursuant to that power, these sections of the regulations detailing the preparation and delivery of an initial escrow account statement relate to § 2609 of RESPA rather than § 2605. Specifically, 24 C.F.R. § 3500.17(m)(1) states:
(m) Penalties. (1) A servicer's failure to submit to a borrower an initial or annual escrow account statement meeting the requirements of this part shall constitute a violation of section 10(d) of RESPA (12 U.S.C. 2609(d)) and this section. For each such violation, the Secretary shall assess a civil penalty of 75 dollars ($75), except that the total of the assessed penalties shall not exceed $130,000 for any one servicer for violations that occur during any consecutive 12-month period. 24 C.F.R. § 3500.17(m)(1). This provision makes it clear that section 3500.17(c)(2)-dealing with the establishment of an escrow account-and section 3500.17(g)(1)(i)-dealing with the contents of the initial escrow account statement-both relate to § 2609 of RESPA rather than § 2605. Plaintiffs have not attempted to assert a cause of action pursuant to § 2609 of RESPA nor could they as a majority of circuits have determined that there is no private right of action for violations of § 2609. See Hardy v. Regions Mortg., Inc., 449 F.3d 1357 (11th Cir. 2006)(no private right of action under § 2609 of RESPA); Louisiana v. Litton Mort. Co., 50 F.3d 1298 (5th Cir. 1995)(same); Allison v. Liberty Sav., 695 F.2d 1086 (7th Cir. 1982)(same); but see Vega v. First Fed. Sav. & Loan Ass'n, 622 F.2d 918 (6th Cir. 1980)(finding that RESPA creates a private right of action for violation of § 2609 notwithstanding the absence of an express provision). Although the Sixth Circuit has concluded that an implied private right of action exists for violations of § 2609, this court is not convinced that the structure of the statute supports this reasoning. Section 2605, 2607, and 2608 each contain an explicit private right of action, whereas § 2609 does not. See 12 U.S.C. §§ 2605(f), 2607(d), and 2608(b). The court is not convinced that Congress would have made explicit a private right of action in the sections immediately preceding § 2609, but simply implied a private right of action for the remainder of the statute. Thus, to the extent that Plaintiffs are indirectly asserting a claim for a violation of § 2609, their cause of action fails as a matter of law.
However, because it is unclear how Plaintiffs believe that the regulations they cite impact their claim under § 2605, and given that Plaintiffs will be permitted leave to file an amended complaint to assert additional facts supporting their claims under § 2605, the court will allow Plaintiffs the opportunity to clarify how § 3500.17(c)(2) and § 3500.17(g)(1)(i) relate to those claims. If Plaintiffs are asserting that §§ 3500.17(c)(2) and 3500.17(g)(1)(i) create a violation of RESPA independent of § 2609 they must allege with some particularity the nature of this cause of action.
Plaintiffs' other RESPA-related claims suffer from the same ambiguities. For instance, Plaintiffs allege that Defendant failed to provide them with a reasonable good faith estimate of the amounts required to be placed into their escrow account in violation of 24 C.F.R. § 3500.7 and Appendix C to 24 C.F.R. § 3500. These sections of the regulations correspond directly with 12 U.S.C. § 2604(c), which imposes a duty upon lenders to provide a good faith estimate of the amount or range of charges for specific settlement services the borrower is likely to incur in connection with the settlement of his or her loan. Like § 2609, § 2604 does not contain an explicit or implied private right of action. See Collins v. FMHAUSDA, 105 F.3d 1366 (11th Cir. 1997); Brophy v. Chase Manhattan Mortg. Co., 947 F. Supp. 879 (E.D. Pa. 1996). Thus, to the extent that Plaintiffs attempt to allege a cause of action pursuant to § 2604 their claims fail as a matter of law. However, if Plaintiffs are asserting that 24 C.F.R. § 3500.7 and Appendix C to § 3500 create an independent violation of RESPA not tied to § 2604 they must allege with some particularity the nature of this cause of action.
In summary, the court will grant Defendant's motion to dismiss Plaintiffs' RESPA claims. To the extent that Plaintiffs' claims arise under §§ 2604 or 2609 they fail as a matter of law and no amendment will cure this failure. However, to the extent Plaintiffs assert that § 3500.7, Appendix C to § 3500.7, § 3500.17(c)(2), or § 3500.17(g)(1)(i) of the regulations implementing RESPA give rise to causes of action separate from either § 2604 of § 2609, they will be permitted to amend their complaint to allege with some particularity the nature of their claims. Furthermore, Plaintiffs will also be permitted to file an amended complaint to state facts which plausibly give rise to a cause of action under § 2605.
B. Negligence
Plaintiffs must prove four elements to establish an action in negligence:
1) a duty or obligation to conform to a standard of conduct recognized by law; 2) a breach of that duty by the defendant; 3) a causal connection between the defendant's breach of duty and the resulting injury or harm; and 4) injury or harm suffered by the plaintiff. See Morena v. S. Hills Health System, 462 A.2d 680, 684 n. 5 (Pa. 1983) (citing Prosser, Law of Torts, § 30 at 143 (4th ed. 1971)). Here, it is the first, second, and third elements that Defendant believes Plaintiffs cannot establish. Specifically, Defendant asserts that Plaintiffs have failed to allege that Defendant owed them a duty of care, and, even assuming a duty of care, that Plaintiffs have failed to allege sufficient facts demonstrating a breach of that duty and a causal link between Defendant's conduct and the harm caused to Plaintiffs. The court will address each of these in turn.
1. Duty of Care
In their complaint, Plaintiffs assert generally that Defendant owed them two distinct duties. First, Plaintiffs assert that they were owed a duty of "reasonable care in servicing the[ir] mortgage, including but not limited to providing a reasonable estimate of the escrow expenses, as evidenced by the statutory provisions contained in, and the regulations incorporated as part of [RESPA]." (Doc. 1, Compl. ¶ 25.) Second, Plaintiffs assert that Defendant owed them a tort duty to use reasonable care in serving the mortgage "arising from (a) the mortgage contract and/or (b) from the relationship between Amro and [Plaintiffs], in light of the gravity of foreseeable harm to [Plaintiffs] if Amro failed to use such reasonable care, and the minimal burden for Amro to have used such reasonable care." (Id. ¶ 26.)
The court finds that these allegations are sufficient to plausibly assert that Defendant owed Plaintiffs a duty of care. Plaintiffs' first allegation is that Defendant's predecessor violated RESPA, and therefore is negligent per se. The concept of negligence per se establishes the elements of duty and breach of that duty where an individual violates a statute designed to prevent a public harm. Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1058 (Pa. Super. Ct. 2003) (citing J.E.J. v. Tri-County Big Brothers/Big Sisters, 692 A.2d 582, 585 (Pa. Super. Ct. 1997); see also White by Stevens v. Se. Pa. Transp., 518 A.2d 810, 816. (Pa. Super. Ct. 1986) (holding that violation of a statute may serve as the basis for negligence per se). While it is yet to be determined whether Defendant violated RESPA, at this stage of the proceedings these allegations are sufficient to survive a motion to dismiss and put Defendant on notice that it must defend against a claim of negligence per se.
Plaintiffs' second allegation-a duty arising from the contract between the parties or because of a special relationship between the parties-is also sufficient to plausibly assert that Defendant owed Plaintiffs a duty. Here, the allegations by Plaintiffs are not that Defendant breached its duty by completely failing to perform, but rather, that it breached its duty by unreasonably performing the initial escrow account analysis. Moreover, while at this stage it is premature for the court to conclude that a special relationship in fact existed between these parties, Plaintiffs' allegations that such a duty did exist is sufficient to "raise a right to relief above the speculative level" such that Plaintiffs' claim is "plausible on its face." Tombly, 550 U.S. at 555. This is particularly true given the seemingly unequal bargaining power between these parties. Thus, the court finds that Plaintiffs' complaint sufficiently pleads the existence of duty owed by Defendant to Plaintiffs.*fn4
2. Breach and Causation
Defendant asserts that even if it owed Plaintiffs a duty of care, that it met that duty because the "appropriate escrow disclosures and settlement costs were made to them within the relevant time-frames." (Doc. 8, Br. in Supp. of Mot. to Dismiss, at 17 of 22. (emphasis added).) Of course, whether this is true is what this case is all about. Plaintiffs' complaint does not allege that the disclosures were not made; rather, Plaintiffs assert that they were not appropriately made in compliance with RESPA and Defendant's duty of care. This disagreement is to be expected, but at this early stage of the proceedings, taking Plaintiffs' allegations as true, the court finds that Plaintiffs have sufficiently pled a breach of a duty of care.
The same is true for the causation prong of Plaintiffs' negligence claim. Defendant asserts that there can be no causation as a matter of law based mainly on its assumption that it complied with its duties, but also based on the argument that Plaintiffs would have purchased the house even if the disclosures would have been accurate. While this may be Defendant's theory of the case, it is in contrast to the allegations made by Plaintiffs in their complaint. In Paragraph 12 of their complaint, Plaintiffs unequivocally assert that "[h]ad Amro provided [them] with a reasonable estimate of the monthly payments that would be required . . . rather than underestimating the payments by over $800.00 per month, [they] would not have incurred the mortgage debt." (Doc. 1, Compl., ¶ 12.) For purposes of ruling on Defendant's motion to dismiss, the court accepts this averment of fact as true. As such, the court finds that Plaintiffs have adequately pled that Defendant's predecessor's conduct caused the harm of which Plaintiffs complain.
3. Summary
The court finds that Plaintiffs' complaint sufficiently sets forth facts that raise Plaintiffs' negligence claim above "the speculative level," such that Plaintiffs could plausibly prevail on this claim at trial. Accordingly, the court will deny Defendant's motion to dismiss Plaintiffs' negligence claim.
C. Punitive Damages Claims
Defendant asserts that if the court permits Plaintiffs' claims to go forward that their request for punitive damages should be stricken. As to Plaintiffs' RESPA count, Defendant argues the punitive damages are not authorized or provided for by RESPA. As to Plaintiffs' negligence count Defendant argues that Plaintiffs have not pled sufficient facts demonstrating that Defendants' conduct was outrageous, willful, and wanton. The court will address each of these in turn.
A review of RESPA reveals that punitive damages are not authorized by the statute. Only sections 2605, 2607 and 2608 of RESPA contain private rights of action, and none of these authorize punitive damages. See 12 U.S.C. § 2605(f) (authorizing actual damages, and, in the case of a pattern and practice of noncompliance statutory damages not to exceed $1000); 12 U.S.C. § 2607(d)(authorizing up to three times the amount of excessive settlement services paid); and 12 U.S.C. § 2608(b)(authorizing damages of up to three times the amount of charges made for title insurance). Accordingly, to the extent that Plaintiffs seek punitive damages for violations of RESPA their claims fail as a matter of law.*fn5
2. Negligence Claims
Unlike Plaintiffs statutory claims, however, punitive damages are permitted for negligence claims if the conduct of the Defendant is based on an "evil motive" or the Defendant is "reckless[ly] indifferen[t] to the rights of others." Restatement (Second) of Tort § 908(2). Here, Plaintiffs' complaint pleads both a factual and legal basis for punitive damages. Plaintiffs allege that Defendant acted with actual malice and ill will in that Defendant recklessly and deliberately disregarded its statutory duties. (See Doc. 1 ¶¶ 22, 28.) For pleading purposes this is sufficient to allow Plaintiffs' claim for punitive damages to move forward.
IV. Conclusion
In accordance with the foregoing, the court will grant in part and deny in part Defendant's motion to dismiss. The court will grant Defendant's motion to dismiss Plaintiffs' RESPA claims, but permit Plaintiffs an opportunity to file an amended complaint setting forth facts which would plausibly state a claim for a violation of RESPA. The court will deny Defendant's motion as it relates to Plaintiffs' negligence claims. The court will issue an appropriate order.
In accordance with the accompanying memorandum of law, IT IS HEREBY ORDERED THAT:
1)Defendant's motion to dismiss, (Doc. 9), is GRANTED IN PART AND DENIED IN PART as follows:
a) Defendant's motion is GRANTED WITHOUT PREJUDICE with regard to Plaintiffs' claims in Count I under the Real Estate Settlement Procedures Act, ("RESPA"), 12 U.S.C. § 2601 et seq. Plaintiffs are granted leave to file an amended complaint within twenty days from the date of this order articulating a factual basis for its cause of action under RESPA and the regulations found at 24 C.F.R. § 3500 et seq. If Plaintiffs do not file an Amended Complaint within twenty days, this case will proceed on Plaintiffs' negligence claims only.
b) Defendant's motion is GRANTED WITH PREJUDICE to the extent that Plaintiffs' claims are based on violations of either 12 U.S.C. § 2604 or 12 U.S.C. § 2609 as neither of these sections contains an express of implied private right of action.
c) Defendant's motion is GRANTED WITH PREJUDICE as to Plaintiffs' claims for punitive damages pursuant to RESPA.
d) Defendant's motion is DENIED in all other respects.
Sylvia H. Rambo United States District Judge
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