United States District Court, D. Maine
PAULA J. COX, et al., Plaintiffs
OCWEN LOAN SERVICING, LLC, et al., Defendants
RECOMMENDED DECISION ON MOTION TO DISMISS
H. Rich III, United States Magistrate Judge
action arising from water damage sustained at four ski
condominium units, three of the remaining seven defendants -
Ocwen Loan Servicing, LLC (“Ocwen”) and Deutsche
Bank Trust Company Americas, as Trustee for Residential
Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through
Certificates (“RALI”), Series 2007-QS1 and Series
2006-QS16 (together, “Deutsche
Bank”) - move pursuant to Federal Rule of Civil
Procedure 12(b)(6) to dismiss all claims of plaintiffs Paula
J. Cox, Spurgeon M. Cox, Jr., and Brian P. Cox
(“Plaintiffs”) against them. See
Defendants' Motion To Dismiss Plaintiffs' Complaint
(“Motion”) (ECF No. 27) at 4-7; Complaint (ECF
No. 1-1) (“Complaint”), attached to Notice of
Removal (ECF No. 1), ¶¶ 35-124.
and Deutsche Bank seek dismissal of the Complaint on the
grounds that the Plaintiffs' negligence claim (Count I)
is barred by the economic loss doctrine and/or is
inadequately pled, thus vitiating their derivative
respondeat superior claim (Count II). See
Motion at 4-7. For the reasons that follow, I recommend that
the court deny the Motion.
Applicable Legal Standards
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citations and internal punctuation omitted). This
standard requires the pleading of “only enough facts to
state a claim to relief that is plausible on its face.”
Id. 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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
ruling on a motion to dismiss under Rule 12(b)(6), a court
assumes the truth of all of the well-pleaded facts in the
complaint and draws all reasonable inferences in favor of the
plaintiff. Román-Oliveras v. Puerto Rico Elec.
Power Auth., 655 F.3d 43, 45 (1st Cir. 2011).
Ordinarily, in weighing a Rule 12(b)(6) motion, “a
court may not consider any documents that are outside of the
complaint, or not expressly incorporated therein, unless the
motion is converted into one for summary judgment.”
Alternative Energy, Inc. v. St. Paul Fire & Marine
Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). “There
is, however, a narrow exception for documents the
authenticity of which are not disputed by the parties; for
official public records; for documents central to
plaintiffs' claim; or for documents sufficiently referred
to in the complaint.” Id. (citation and
internal quotation marks omitted).
burden is on the moving party to prove that no legally
cognizable claim for relief exists.” 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357, at 462 (3d ed. 2004) (footnote
Complaint sets forth the following relevant factual
Plaintiffs own four condominium units (Units 5, 6, 7, and 8)
at 53 Sunday River Road in Bethel, Maine. Complaint ¶ 1.
Ocwen claims ownership in a mortgage from the Plaintiffs to
Dynamic Capital Mortgage, Inc. (“Dynamic
Capital”) by instrument dated August 30, 2006, recorded
in the Oxford County Registry of Deeds at Book 4001, Page 61,
for Unit 5. Id. ¶ 10; see also Exh. A
(ECF No. 27-2) to Motion (“Unit 5 Mortgage”).
Bank, as trustee for RALI Series 2007-QS1, claims ownership
in a mortgage from the Plaintiffs to Dynamic Capital by
instrument dated August 30, 2006, recorded in the Oxford
County Registry of Deeds at Book 4001, Page 84. Complaint
¶¶ 21-22; see also Exh. B (ECF No. 27-3)
to Motion (“Unit 7 Mortgage”).
Bank, as trustee for RALI Series 2006-QS16, also claims
ownership in a mortgage from the Plaintiffs to Dynamic
Capital by instrument dated August 30, 2006, recorded in the
Oxford County Registry of Deeds at Book 4001, Page 103.
Complaint ¶¶ 27-28; see also Exh C (ECF
No. 27-4) to Motion (“Unit 8 Mortgage”).
Bank hired Ocwen to service the mortgages it claims to own
with respect to Units 7 and 8. Complaint ¶¶ 66, 83.
Part of the servicing that Ocwen agreed to perform for
Deutsche Bank was to maintain Units 7 and 8. Id.
¶¶ 67, 84. Ocwen hired Altisource Asset Management
Corporation (“Altisource”) and CoreLogic, Inc.
(“CoreLogic”) to lock the Plaintiffs out of Units
5, 7, and 8 and to preserve the condition of those units.
Id. ¶¶ 36-37, 59-60, 76-77, 110-16,
locked the Plaintiffs out of Units 5, 7, and 8 without notice
to them or their permission. Id. ¶¶ 38-40,
61-63, 78-80. Altisource and CoreLogic failed to properly
preserve the condition of Units 5, 7, and 8. Id.
¶¶ 41, 64, 81, 112, 115, 120. On or about, December
1, 2012, Units 5, 7, and 8 were damaged when pipes froze,
causing water to run in each of those units. Id.
¶¶ 42, 65, 82. The Plaintiffs also sustained damage
to their personal property in each of those units.
Id. ¶¶ 14, 26, 34. With ...