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Muathe v. Fifth Third Bank

United States District Court, D. Kansas

October 21, 2014

ERIC M. MUATHE, Plaintiff,
v.
FIFTH THIRD BANK, et al., Defendants.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Chief Judge.

"[A] short and plain statement of the claim showing that the pleader is entitled to relief" is about as clear as any federal rule can be. Yet somehow, repossessing a car has exploded into a fifty-page complaint involving twenty-two defendants, and thirteen formal claims incorporating forty-four alleged violations of the law. This matter comes before the court on four Motions to Dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 8(a) and 12(b)(6), each filed by a separate group of defendants. Plaintiff also has three pending Motions for Leave to File Surreplies to the Motions to Dismiss. The court finds that surreplies are unwarranted here, and the complaint does not satisfy the pleading requirements of Rule 8(a) and dismisses all counts per Rule 12(b)(6).

I. Background

Consistent with the court's obligation to accept as true a plaintiff's alleged facts when determining the sufficiency of a pleading under Rule 12(b)(6), the following factual background is adopted from the complaint.

Plaintiff Eric M. Muathe purchased a new Mercedes-Benz on November 22, 2006, from defendant Fletcher Auto Group in Joplin, Missouri. Dkt. 1, at 4. Plaintiff asked to have the contract re-worked with different trade-in terms three days later. Dkt. 1, at 4. The final sale contract was back-dated to November 22, 2006. Dkt. 1, at 4. Defendant First Third Bank filed a Petition in Replevin against plaintiff in the District Court of Johnson County, Kansas on March 13, 2012, for a breach of the purchase installment contract. Dkt. 1, at 7. On plaintiff's motion, the replevin action was transferred to the District Court of Crawford County, Kansas. Dkt. 1, at 6. Plaintiff, acting pro se, filed this action in federal court on May 2, 2014. Dkt. 1.

The complaint enumerates thirteen formal counts against various combinations of the twenty-two defendants. Dkt. 1. It alleges various forms of concerted action, concealment, and conspiracies to defraud or otherwise injure plaintiff. Dkt. 1. The complaint also alleges, among other thing, false credit reporting and constitutional due process violations for wrongful service of process.[1] Dkt. 1. While it is unclear from the complaint exactly what conduct plaintiff alleges against every defendant, it is clear that all claims are connected to the underlying replevin action for the financed Mercedes on which plaintiff defaulted.

Plaintiff's fifty-page complaint alleges the following violations: Count I: RICO Violations, for mail and wire fraud; Count II: Wrongful Foreclosure; Count III: Violations of the Fair Debt Collection Practices Act; Count IV: Violations of the Fair Credit Reporting Act; Count V: Violations of the Kansas Uniform Consumer Credit Code; Count VI: Common Law Fraud; Count VII: Violation of K.S.A. 61-3003(d)(1); Count VIII: Violations of the Kansas Consumer Protection Act; Count IX: Breach of Contract; Count X: Breach of Duty of Good Faith and Fair Dealing; Count XI: Money Had and Received; Count XII: Negligent Misrepresentation; and Count XIII: Quiet Title Pursuant to K.S.A. 60-1002. Dkt. 1.

Four sets of defendants filed separate motions to dismiss the complaint. Dkts. 12; 14; 16; 42. In sum, the Motions to Dismiss address all thirteen formal Counts and all other claims in the complaint. Plaintiff responded to the Motions to Dismiss and then attempted to file surreplies to the Motions without moving for leave to file the same. Dkts. 34; 35; 36. Those filings were struck under D. Kan. Rule 7.1. Dkt. 38. Plaintiff now has motions pending for leave to file surreplies. Dkts. 39; 40; 41.

II. Analysis

All four motions to dismiss allege that the complaint fails to state a claim upon which relief can be granted because it fails the pleading standard of Federal Rule of Civil Procedure 8(a).

A. Leave to File Surreply

As a preliminary matter, the court addresses and denies plaintiff's Motions for Leave to File Surreply. D. Kan. Rule 7.1(c) provides for responses and replies to motions, but does not provide for surreplies to be filed. Leave to file a surreply will be granted in the rare circumstance "where a movant improperly raises new arguments in a reply." King v. Knoll, 399 F.Supp. 1169, 1174 (D. Kan. 2005) (internal quotation and citation omitted); accord Green v. New Mexico, 420 F.3d 1189, 1196-97 (10th Cir. 2005).

Here, movants have raised no new arguments or introduced new facts in their respective replies. Movants' replies directly address plaintiff's responsive arguments on existing legal theories and facts. Plaintiff's Motions for Leave to File ...


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