United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
filed this action pro se on September 28, 2016, in the Third
Judicial District Court of Shawnee County, Kansas. In their
petition, plaintiffs allege that defendant U.S. Bank Trust
violated federal laws, including the Truth in Lending Act
(“TILA”) and the Home Ownership and Equity
Protection Act (“HOEPA”). Plaintiffs assert they
were subject to defendant's predatory lending practices,
and suffered injuries as a result. Defendant removed the case
to federal court on December 30, 2016. Plaintiffs have been
absent since filing suit. Their absentee status manifested
itself in several ways. For instance, they have defaulted on
their obligation under our rules to file timely responses to
defendant's Motion to Dismiss (Doc. 3) and the
court's Order to Show Cause (Doc. 7).
April 7, 2017, this court issued an Order to Show Cause
directing plaintiffs to submit a written explanation to the
court why it should not consider and rule on defendant's
motion as uncontested under D. Kan. Rule 7.4(b). The court
directed plaintiffs to respond by April 13, 2017. That
deadline has passed, so the court rules on defendant's
Failure to Respond
Rule 7.4(b) provides: “a party or attorney who fails to
file a responsive brief or memorandum within the time
specified in D. Kan. Rule 6.1(d) waives the right to later
file such brief or memorandum” absent a showing of
excusable neglect. “If a responsive brief or memorandum
is not filed within the D. Kan. Rule 6.1(d) time
requirements, the court will consider and decide the motion
as an uncontested motion.” D. Kan. Rule 7.4(b).
“Ordinarily, the court will grant the motion without
further notice.” Id.
the court could grant defendant's motion under Rule
7.4(b) without further discussion, the court also rules on
the motion to dismiss based on its merits. E.g.,
Gee v. Towers, No. 16-2407, 2016 WL 4733854, *1 (D.
Kan. Sept. 12, 2016) (dismissing complaint under Rule 7.4(b),
but also considering motion to dismiss on its merits).
Motion to Dismiss
moves to dismiss the case under Federal Rule of Civil
Procedure 12(b)(6) for “failure to state a claim upon
which relief can be granted.” Rule 8(a)(2) provides
that a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Although this rule “does not require
‘detailed factual allegations, '” it demands
more than “[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570).
“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.” Id. (citing
Twombly, 550 U.S. at 556). “Under this
standard, ‘the complaint must give the court reason to
believe that this plaintiff has a reasonable
likelihood of mustering factual support for these
claims.'” Carter v. United States, 667
F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
motion to dismiss under Rule 12(b)(6)-like the one at issue
here-the court assumes that a complaint's factual
allegations are true, but need not accept mere legal
conclusions as true. Id. at 1263. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements” are not enough to state a
claim for relief. Iqbal, 556 U.S. at 678. In
addition to the complaint's factual allegations, the
court also may consider “attached exhibits and
documents incorporated into the complaint by
reference.” Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009) (citations omitted).
Pro Se Plaintiff
plaintiffs bring this lawsuit pro se, the court construes
their pleadings liberally and holds them to a less stringent
standard than formal pleadings drafted by lawyers. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
But the court does not assume the role of their advocate.
Id. Also, plaintiffs' pro se status does not
excuse them from “the burden of alleging sufficient
facts on which a recognized legal claim could be
based.” Id. Nor are plaintiffs relieved from
complying with the rules of the court or facing the
consequences of noncompliance. Ogden v. San Juan
Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.