United States District Court, E.D. Virginia, Norfolk Division
STERLING L. JENNINGS and DEIRDRE D. JENNINGS, Plaintiffs,
ROUNDPOINT MORTGAGE SERVICING CORP. and EQUITY TRUSTEES, LLC, Defendants.
REBECCA BEACH SMITH CHIEF JUDGE
matter is before "he court on the Partial Motion to
Dismiss, filed by the Defendant, RoundPoint Mortgage
Servicing Corporation ("RoundPoint"), on August 18,
2017. ECF No. 6. The Plaintiffs filed their Memorandum in
Opposition to the Partial Motion to Dismiss
("Opposition") on September 14, 2017. ECF No. 11.
RoundPoint filed its Reply in Support of its Partial Motion
to Dismiss ("Reply") on September 19, 2017. ECF No.
September 21, 2017, the Partial Motion to Dismiss was
referred to United States Magistrate Judge Robert J. Krask,
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and Federal Rule of Civil Procedure 72(b) to conduct
hearings, including evidentiary hearings, if necessary, and
to submit to the undersigned district judge proposed findings
of fact, if applicable, and recommendations for the
disposition of the Partial Motion to Dismiss. ECF No. 13. The
Magistrate Judge filed the Report and Recommendation
("R&R") on December 22, 2017. ECF No. 14. The
Magistrate Judge recommended that RoundPoint's Partial
Motion to Dismiss be granted in part and denied in part.
Id. at 1.
of the R&R, the parties were advised of their right to
file written objections to the findings and recommendations
made by the Magistrate Judge. Id. at 12-13. On
December 29, 2017, the Plaintiffs filed two objections to the
R&R and requested leave to amend their Complaint. ECF No.
15. RoundPoint responded to the Plaintiffs' objections on
January 12, 2018. ECF No. 16. The matter is now ripe for
Review of Magistrate Judge's R&R
to Rule 72(b) of the Federal Rules of Civil Procedure, the
court, having reviewed the record in its entirety, shall make
a de novo determination of those portions of the
R&R to which the plaintiff has specifically objected.
Fed.R.Civ.P. 72(b). Objections must be "specific and
particularized." United States v. Midgette, 478
F.3d 616, 621 (4th Cir. 2007) . The court may accept, reject,
or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter to him with
instructions. 28 U.S.C. § 636(b)(1).
Leave to Amend Complaint
is well-established that leave to amend a complaint under
Federal Rule of Civil Procedure 15(a) should be 'freely
given when justice so requires.'" Wilkins v.
Wells Fargo Bank; N.A., 320 F.R.D. 125, 127 (E.D. Va.
2017) (quoting Fed.R.Civ.P. 15(a)). "The Supreme Court
has emphasized that 'this mandate is to be
heeded.'" Id. (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)); see also Johnson
v. Oroweat Foods Co., 785 F.2d 503, 509-10 (4th Cir.
1986). Accordingly, "unless 'the amendment would be
prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would . . .
[be] futile, '" the court should generally grant the
plaintiff's request. Steinburg v. Chesterfield Cnty.
Planning Comm'n, 527 F.3d 377, 390 (4th Cir. 2008)
(quoting Laber v. Harvey, 438 F.3d 404, 426 (4th
an amendment is prejudicial will often be determined by the
nature of the amendment and its timing." Laber,
438 F.3d at 426. "Delay alone . . . is an insufficient
reason to deny the plaintiff's motion to amend."
Id. at 427. Furthermore, "[a]n amendment is not
prejudicial . . . if it merely adds an additional theory of
recovery to the facts already pled and is offered before any
discovery has occurred." Id. An amendment is
"futile if it is apparent that the proposed amendments
could not withstand a motion to dismiss."
Wilkins, 320 F.R.D. at 127 (internal quotation marks
and citations omitted).
Motion to Dismiss
to Rule 12(b)(6), a complaint must be dismissed when a
plaintiff s allegations fail to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6)
motion to dismiss tests only the sufficiency of a complaint;
it does not resolve contests regarding the facts of the case,
the merits of a claim, or the applicability of any defense.
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) . "To 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.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
plausibility means that a "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). It is, therefore, not enough for a plaintiff to
allege facts demonstrating a "sheer possibility" or
"mere consist[ency]" with unlawful conduct.
Id. (citing Twombly, 550 U.S. at 557).
Supreme Court, in Twombly and Iqbal,
offered guidance to courts ...