United States District Court, D. Connecticut
RULING AND ORDER ON DEFENDANTS' MOTIONS TO
DISMISS AND PLAINTIFF'S MOTIONS TO STRIKE AND
A. BOLDEN UNITED STATES DISTRICT JUDGE
Moorer (“Plaintiff” or “Ms. Moorer”),
proceeding pro se, sued U.S. Bank N.A., Successor
Trustee to Bank of America, N.A., Successor in Interest to
LaSalle Bank N.A., On Behalf of the Registered Holders of
Bear Stearns Asset Backed Securities I L.L.C. (“the
Trust”) and Selective Portfolio Servicing, Inc.
(“SPS”) (collectively “U.S. Bank
Defendants” or “U.S. Bank”); Glass &
Braus, L.L.C. (“Glass & Braus”); and Bendett
& McHugh, P.C. (“Bendett & McHugh”)
(collectively “Defendants”), alleging misconduct
on the part of Defendants related to a state-court
foreclosure action in violation of the federal Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692, et seq.; the federal Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. § 1681,
et seq.; and the Fifth and Fourteenth Amendments to
the U.S. Constitution; and under the common-law torts of
defamation, fraud, and intentional infliction of emotional
distress (“IIEP”), and civil conspiracy. ECF No.
now move to dismiss the Amended Complaint, Mots. To Dismiss,
ECF Nos. 17, 20, 30, and Ms. Moorer has moved to amend the
Amended Complaint, ECF No. 63.
reasons that follow, the Court GRANTS the
motions to dismiss and DENIES the motion to
amend and motions to strike.
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Moorer argues that Defendants “unlawfully trespassed
and committed fraud upon and against the Plaintiff and her
property and unlawfully slandered Plaintiff's reputation,
unlawfully caused monetary and emotional injury to Plaintiff
due to their direct and intentional acts.” Amend.
Compl. ¶ 1, ECF No. 56 at 3. In support of this
contention, the Amended Complaint maintains that Ms. Moorer
never entered into a contract with Defendants. Am. Compl.
¶ 9. U.S. Bank allegedly has not loaned Ms. Moorer
“any amount of money, ” and therefore she does
not owe any money to U.S. Bank. Id. ¶¶
10-11. The Amended Complaint further maintains that
Defendants are third-party debt collectors “since they
are not the original creditors.” Id. ¶
The 2014 Foreclosure Proceeding
October 21, 2014, U.S. Bank, through its counsel at Bendett
& McHugh, P.C., sued “Tania D. Paige Moorer”
in Connecticut Superior Court allegedly seeking payment on a
promissory note and mortgage in default that had been
assigned to U.S. Bank. See generally Oct. 21, 2014,
Compl. ¶¶ 1, 6, U.S. Bank's Br., Ex. A, ECF No.
17-3. On August 10, 2015, the court granted U.S. Bank's
motion for strict foreclosure. Aug. 10, 2015 Order, U.S.
Bank's Br., Ex. B, ECF No. 17-4. U.S. Bank, however,
moved, on December 14, 2015, to vacate the judgment because
the account was allegedly “being reviewed for a loan
modification, ” U.S. Bank's Mot. to Vacate at 1,
U.S. Bank's Br., Ex. C, ECF No. 17-5, which the court
granted. Jan. 5, 2016, Order, U.S. Bank's Br., Ex. D, ECF
around February 23, 2016, U.S. Bank again moved the court for
judgment and strict foreclosure. U.S. Bank's Mot. for J.
of Strict Foreclosure, U.S. Bank Br., Ex. E, ECF No. 17-7;
Amend. Comp. ¶ 28. Ms. Moorer, in response, moved to
dismiss U.S. Bank's claim in its entirety. Moorer's
Mot. to Dismiss at 1, U.S. Bank's Br., Ex. F, ECF No.
17-8. The court summarily dismissed the case under
Connecticut Practice Book Section 17-4(c)(1). May 6, 2016,
Order at 1, U.S. Bank's Br., Ex. G., ECF No. 17-9. The
court denied U.S. Bank's motion to open the judgment of
dismissal. July 5, 2016, Order at 1, U.S. Bank's Br., Ex.
I, ECF No. 17-11.
The 2016 Foreclosure Proceeding
November 20, 2016, Glass & Braus sent Ms. Moorer a letter
that read, in relevant part:
We have been retained by [U.S. Bank] to collect [the] debt,
which is, according to our client's records, overdue.
This letter represents our demand for payment. If you intend
to contest this debt or request validation thereof . . . or
to exercise your rights . . . please call or otherwise
contact us . . . within the next 30 days.
Under the Fair Debt Collection Practices Act, Glass &
Braus Br., Ex. A, ECF No. 21. The letter further stated:
If you dispute the validity of this debt, please contact us
within the next 30 days. If you do not dispute the validity
of the debt, or portion thereof, within 30 days of the
receipt of this letter, we will assume it is valid. If you
dispute the validity of this debt or any portion thereof
within 30 days of receipt of this letter, we will obtain and
mail you verification of the debt or a copy of the judgment
against you. At your request, within 30 days of receipt of
this letter, we will provide you with the name and address of
the original creditor, if different from the current
December 7, 2016, U.S. Bank, through counsel at Glass &
Braus, brought a new action to foreclose upon Ms.
Moorer's mortgage. See generally Dec. 7, 2016,
Compl., U.S. Bank's Br., Ex. J, ECF No. 17-12; Amend.
Compl. Id. ¶ 28. According to Glass &
Braus, that same day it received a Notice of Dispute dated
December 9, 2016, from Ms. Moorer. Glass & Braus Br. at
3, ECF No. 21; December 9, 2016, Notice of Dispute
(“Notice of Dispute”), Pl.'s Opp. to U.S.
Bank's Mot. to Dismiss, Ex. J, ECF No. 25 at 59. The
Notice of Dispute, which was directed at Glass & Braus
In response to a letter that was sent by you dated November
20, 2016, I hereby dispute the validity of this debt pursuant
to the Fair Debt Collections Practic[es] Act, 15 U.S.C.
[§] 1692g . Please send to me all of the certified
documents that you have in your file at the time of this
request concerning the alleged debt. In addition, please send
the name and business address of the alleged original
Notice of Dispute, Pl.'s Opp. to U.S. Bank's Mot. to
Dimiss, Ex. J, ECF No. 25 at 59.
receiving such notice, Glass & Braus allegedly ceased all
action against Ms. Moorer and forwarded the Notice of Dispute
to its client. Glass & Braus Br. at 3. SPS allegedly
provided a copy of a copy of the Mortgage Note and a copy of
her transaction history to Ms. Moorer. Id., Ex. C.
Since filing the December 7, 2016, complaint, Glass &
Braus alleges that it has “undertaken absolutely no
action in the foreclosure matter against [Ms. Moorer] and has
withdrawn as counsel.” Id. a 4.
Amended Complaint alleges that before, during, and after U.S.
Bank filed suit against Ms. Moorer, and notwithstanding her
alleged “prior cease requests, ” Defendants sent
payment requests to Ms. Moorer. Id. ¶¶ 13.
The Amended Complaint alleges that, by way of SPS, U.S. Bank,
presumably in correspondence seeking to collect on Ms.
Moorer's debt, misrepresented the dollar amount at issue
and that any amount U.S. Bank and SPS claimed Ms. Moorer owed
was fraudulent due to the fact that she owed them no money.
Id. ¶ 15. On July 18, 2016, allegedly, U.S.
Bank, again through SPS, sent correspondence through the mail
to Ms. Moorer that threatened the sale of Moorer's
property. Id. ¶ 17.
November 20, 2016, Glass & Braus allegedly falsely held
itself out as acting in the capacity of attorneys, when, in
fact, the Amended Complaint alleges, it was acting “in
a debt-collector's capacity.” Id. at 18.
On December 7, 2016, U.S. Bank, through Glass & Braus,
again allegedly threatened the sale of Ms. Moorer's
property, which was unlawful, the Amended Complaint
maintains, because Ms. Moorer had disputed the amount owed.
Id. ¶ 19.
Amended Complaint alleges that, on September 12, 2016, U.S.
Bank, acting through SPS, “defamed” Ms.
Moorer's character by reporting false debts on her credit
report. Id. ¶ 21. U.S. Bank allegedly failed to
remove the false information from Ms. Moorer's credit
report “in a timely manner” as she requested.
Id. ¶ 24. U.S. Bank, acting through Bendett
& McHugh, also allegedly defamed Ms. Moorer's
“public reputation” by allegedly entering false
public records into the Town of Stratford's land records
in the form of lis pendens. Id. ¶ 22.
Under the terms of 15 U.S.C. § 1681i, Ms. Moorer
allegedly, through U.S. Bank's “express
acknowledgement of Plaintiff's dispute, ”
indirectly notified the credit reporting agency of the
disputed debt. Id. ¶ 25.
January 12, 2017, Ms. Moorer brought suit against Defendants.
U.S. Bank moved to dismiss the Complaint arguing that her
claims are barred under the Noerr-Pennington and
Connecticut litigation privilege doctrines, which, U.S. Bank
argues, protect its right to petition the state court for
redress. U.S. Bank's Mot. to Dismiss at 1, ECF No. 17. In
the alternative, U.S. Bank argues that the Complaint must be
dismissed because it “fails to state any claim.”
Id. at 2.
& Braus moved to dismiss the Complaint by challenging the
Court's subject matter jurisdiction and on the basis that
the Complaint fails to state a claim upon which the Court may
grant relief. Glass & Braus Mot. to Dismiss at 1, ECF No.
Bendett & McHugh moved to dismiss the Complaint for
failure to state a claim upon which the Court may grant
relief. ECF No. 30.
Court granted leave for Ms. Moorer to file an Amended
Complaint and noted that it would consider Defendants'
pending motions as addressed to the Amended Complaint. ECF
No. Further, the Court granted leave for Defendants to submit
supplemental briefs to address the Amended Complaint.
Id. None did so. Ms. Moorer's Amended Complaint
maintains that U.S. Bank and SPS intended to and did
“damage Plaintiff financially by not returning all
payments made to them, coerced from her by fraud.”
Id. ¶ 29. Defendants allegedly damaged Ms.
Moorer's “standing in her community, defam[ed] her
character [and] creditworthiness, ” causing her
“loss of time at work, financial loss,  trauma,
humiliation, pain, ridicule, mental distress and mental
anguish.” Id. ¶ 33.
four subsections, each labeled a “Cause, ” the
Amended Complaint, liberally construed, brings four largely
overlapping causes of action. The first count alleges that
Defendants, acted in concert to willfully violate the FDCPA,
15 USC § 1692c, et seq., and the FCRA, 15 U.S.C
§1681i. Id. ¶¶ 34-40.
second count claims that Defendants, acted in concert, to
willfully cause Ms. Moorer mental distress, id.
¶ 42, and their efforts did cause Ms. Moorer mental
distress, id. ¶ 43, 44.
knew or should have known that their acts were in direct
violation of clearly established law and any reasonable bank,
debt collector, counsel and/or service agency would have
know[n] that . . . sending correspondence regarding an
invalidated debt, using unconscionable means to charge fees
and interest not allowed by law without contract, stating
false representations of the character amount, giving false
implications of attorneys capacity in letterheads, filing
unlawful civil actions to deprive Plaintiff Moorer of
property, false credit reporting not removing false credit
reporting, not ceasing collection efforts, and falsely
representing services rendered would cause Plaintiff Moorer
severe mental distress and mental anguish.
Id. ¶ 44.
Amended Complaint, in the third count, alleges that
Defendants “knew or should have known that monetary
damages sustained by Plaintiff Moorer [were] the likely
result of their conduct after filing civil actions to harass,
false credit reporting, not removing false credit reporting
as requested, and not returning payments coerced from Moorer
by fraud.” Id. ¶ 48.
fourth count, the Amended Complaint maintains that Defendants
acted in “concert” to “maintain a pattern
and practice of putting under duress, depriving of due
process, and causing damage.” Id. ¶ 52.
Defendants allegedly “acted wantonly, recklessly,
willfully, and maliciously in concert . . . . with the direct
intent and sole purpose of harassing, injuring, humiliating,
vexing, oppressing, and causing mental anguish to Plaintiff
Moorer.” Id. ¶ 57.
Moorer seeks compensatory and punitive damages and equitable
relief, as well as reasonable attorney's fees and costs.
Id. at 9.
argument, Defendants again moved to dismiss Ms. Moorer's
Amended Complaint by oral motion, ECF No. 59, and Ms. Moorer
objected to Defendants' motions, ECF No. 61. The Court
granted leave for the parties to file “supplemental
briefing” by December 12, 2017. ECF No. 16. No party
timely filed any supplemental briefing. On December 28, 2017,
Ms. Moorer sought leave from the Court to amend the Amended
Complaint. ECF No. 63. U.S. Bank and Glass & Braus have
opposed the motion. ECF Nos. 64-65.
Court addresses all pending motions below.
STANDARD OF REVIEW
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a plaintiff must state a claim for relief
that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted); see
also Fed. R. Civ. P. 8(a)(2) (requiring that a plaintiff
plead only “a short and plain statement of the claim
showing that the pleader is entitled to relief”).
is facially plausible if “the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. In other
words, to state a plausible claim, a plaintiff's
complaint must have “enough fact to raise a reasonable
expectation that discovery will reveal evidence”
supporting the claim. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007). Although “detailed factual
allegations” are not required, a complaint must offer
more than “labels and conclusions, ” “a
formulaic recitation of the elements of a cause of action,
” or “naked assertion[s]” devoid of
“further factual enhancement.” Id. at
determining whether the plaintiff has met this standard, the
Court must accept the allegations in the complaint as true
and draw all reasonable inferences in the plaintiff's
favor. In re NYSE Specialists Sec. Litig., 503 F.3d
89, 95 (2d Cir. 2007); Newman & Schwartz v. Asplundh
Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir. 1996)
considering a motion to dismiss, “a district court must
[also] limit itself to facts stated in the complaint or in
documents attached to the complaint as exhibits or
incorporated in the complaint by reference.” Newman
& Schwartz, 102 F.3d at 662 (citation and internal
quotation marks omitted). The Court notes that the operative
Complaint makes a number of references to attached exhibits,
yet, Ms. Moorer did not attach exhibits to the Amended
Complaint. See ECF No. 56. The Court thus relies
solely upon the alleged facts in her Amended Complaint.
pro se complaints “must be construed liberally
and interpreted to raise the strongest arguments that they
suggest.” Sykes v. Bank of Am., 723 F.3d 399,
403 (2d Cir. 2013) (internal quotation marks omitted)
(quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006)); see also Tracy v.
Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010)
(discussing the “special solicitude” courts
afford pro se litigants).
the Amended Complaint “liberally and interpret[ing it]
to raise the strongest arguments they suggest, ” Sykes,
723 F.3d at 403, the Court concludes that Ms. Moorer brings
claims for damages under the Fifth and Fourteenth Amendments,
FDCPA, FCRA, and Connecticut common-law torts of fraud,
conspiracy, and intentional infliction of emotional distress
and will address each of these claims in turn.
MS. MOORER'S FEDERAL CONSTITUTIONAL CLAIMS
Amended Complaint asserts Defendants violated Ms.
Moorer's Fifth Amendment rights “as purview through
the 14th Amendment of the U.S. Constitution.” Amend.
Compl. ¶ 3. The Fourteenth Amendment constricts the
conduct of states, not federal actors. Sw. Oil Co. v.
State of Tex., 217 U.S. 114, 119 (1910). The Amended
Complaint plainly states that Defendants are entities
operating “in the State of Connecticut.” Amend.
Compl. ¶¶ 5-8. As a result, U.S. Bank is subject,
if at all, to the Fourteenth Amendment and not the Fifth,
which applies to federal entities. Accordingly, the Court
addresses Ms. Moorer's claims as arising under the
Moorer alleges that Defendants' “trespassed . . .
against Plaintiff and her property. Id. U.S. Bank
contends Ms. Moorer fails to state a claim upon which this
Court may grant relief because “[a] claim for
Constitutional violations lies only where there is state
action.” U.S. Bank's Br. at 25. The Court agrees.
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).
“[T]he due process analysis is basically the same under
both the Fifth and Fourteenth Amendments.” Chew v.
Dietrich, 143 F.3d 24, 28 (2d Cir. 1998).
the United States Constitution regulates only the Government,
not private parties, ' a litigant . . . who alleges that
her ‘constitutional rights have been violated must
first establish that the challenged conduct constitutes
‘state action.'” Grogan v. Blooming Grove
Volunteer Ambulance Corps, 768 F.3d 259, 263 (2d Cir.
2014) (quoting Flagg v. Yonkers Sav. & Loan
Ass'n, FA, 396 F.3d 178, 186 (2d Cir. 2005)). As a
corollary to the state-action requirement, “Title 42
U.S.C. § 1983 provides a remedy for deprivations of
rights secured by the Constitution and laws of the United
States when that deprivation takes place ‘under color
of any statute, ordinance, regulation, custom, or usage, of
any State or Territory . . . .'” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 924 (1982). Ms. Moorer
has not sufficiently plead either theory of liability.
No State Action
fundamental requirement of due process is the opportunity to
be heard at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319,
333 (1976) (citation and quotation marks omitted).
“[T]he root requirement” of the Due Process
Clause is “that an individual be given an opportunity
for a hearing before he is deprived of any
significant property interest.” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citing
Boddie v. Connecticut, 401 U.S. 371, 379 (1971)).
time and manner of the predeprivation hearing is determined
by balancing the competing interests at stake. A court must
weigh (1) the private interests; (2) the governmental
interests; (3) the need to avoid administrative burden and
delay; and (4) the risk of error. Loudermill, 470
U.S. at 542-43 (citing Mathews, 424 U.S. at 335).
Some situations exist where a postdeprivation hearing will
satisfy the Fifth Amendment's due process requirement.
Id. at 542 n.7 (citation omitted).
Moorer's claim fails for a lack of state action. Ms.
Moorer does not, nor could she, allege facts that would
support an allegation that the Defendants are state actors.
The fact that a governmental actor may have granted them
corporate charters does not change this. “All
corporations act under charters granted by a government,
usually by a State. They do not thereby lose their
essentially private character.” San Francisco Arts
& Athletics, 483 U.S. at 543-44. Nor has Ms. Moorer
alleged facts that would support an allegation that
Defendants perform functions that have been
“traditionally the exclusive
prerogative” of the Federal Government. Id. at
544 (internal quotation marks and citation omitted). Finally,
and perhaps most fundamentally, the Amended Complaint fails
to allege sufficient facts to plausibly allege that the
government has “exercised coercive power or has
provided such significant encouragement, either overt or
covert, that the choice must in law be deemed to be that of
the [government].” Id. at 546.
Amended Complaint also contains insufficient factual detail
to support an inference, to which she is entitled as
Plaintiff, that she has been dispossessed of her home.
Neither has Ms. Moorer refuted U.S. Bank's assertion that
the 2016 foreclosure proceeding remains pending.
Aff. ¶ 5, ECF No. 17-1. As a result, it is unclear that
she has been divested of her right to the real property for
which she took out the mortgage at issue here.
Assuming Ms. Moorer had alleged, which she has not, that
Defendants were acting on behalf of the state, to the extent
that Ms. Moorer alleges that Defendants' demand for
payment on her mortgage is a “taking,
” this theory of liability also fails.
Takings Clause of the Fifth Amendment provides that “private
property [shall not] be taken for public use, without just
compensation.” U.S. Const. amend. V. There are two
general categories of takings: physical takings and
regulatory takings. Vizio, Inc. v. Klee, No.
3:15-CV-00929 (VAB), 2016 WL 1305116, at *17 (D. Conn. Mar.
31, 2016) (citing Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg'l Planning Agency, 535 U.S. 302, 321
state a claim under . . . the Takings Clause, plaintiffs
[are] required to allege facts showing that state action
deprived them of a protected property interest.”
Story v. Green, 978 F.2d 60, 62 (2d Cir. 1992)
(citing Ruckelshaus v. Monsanto Co., 467 U.S. 986,
1000-04 (1984)). The Takings Clause does not proscribe the
“vast governmental power” to take private
property for public use, provided that the government pays
just compensation when it does. Stop the Beach
Renourishment, Inc. v. Florida Dep't of Envtl.
Prot., 560 U.S. 702, 734 (2010) (Kennedy, J.
concurring). Therefore, takings claims typically involve
property interests for which the government can provide
monetary compensation without the government being deprived
of the property or public benefit that it seeks. See
Id. at 740-41 (“It makes perfect sense that the
remedy for a Takings Clause violation is only damages, as the
Clause does not proscribe the taking of property; it
proscribes taking without just compensation.”)
(internal quotation marks omitted). Vizio, Inc.,
2016 WL 1305116, at *18.
takings claims must allege “specific and identified
properties or property rights . . . to come within the
regulatory takings prohibition, ” such that the
challenged regulations are “so excessive as to destroy,
or take, a specific property interest.” Eastern
Enterprises v. Apfel, 524 U.S. 498, 541, 542 (1998)
(Kennedy, J. concurring in the judgment and dissenting in
part) (collecting cases identifying various specific property
interests). See also Id. at 554 (Breyer, J.
dissenting) (“The ‘private property' upon
which the [Takings] Clause traditionally has focused is a
specific interest in physical or intellectual
the Takings Clause, ordinary obligations to pay money are
different. “Unlike real or personal property, money is
fungible.” United States v. Sperry Corp., 493
U.S. 52, 62 n. 9 (1989). In Easter Enterprises v.
Apfel, a majority of five justices of the Supreme Court
agreed that simply imposing an obligation to perform an act,
such as making a payment, does not take property in a
constitutional sense. See 524 U.S. at 539-47
(Kennedy, J.); id. at 554-58 (Breyer, J.). “As
[its] language suggests, at the heart of the [Takings] Clause
lies a concern, not with preventing arbitrary or unfair
government action, but with providing compensation for
legitimate government action that takes ‘private
property' to serve the ‘public' good.”
Id. at 554 (Breyer, J.). The Takings Clause is not
“a substantive or absolute limit on the
government's power to act. The ...