United States District Court, N.D. Illinois, Eastern Division
SONYA DAVIS, et al., as individuals and on behalf of themselves and all Class Members, Plaintiffs,
BANK OF AMERICA CORPORATION, et al., Defendants.
Charles P. Kocoras United States District Judge
before the Court are six Motions to Dismiss Plaintiff Sonya
Davis and thirty-eight other individual Plaintiffs'
(collectively, “Plaintiffs”) Second Amended
Complaint: (i) pursuant to Federal Rules of Civil Procedure
8(a), 12(b)(6), and 20(a) by Defendant Bank of America
Corporation (“BAC”); (ii) pursuant to Federal
Rules of Civil Procedure 8(a), 12(b)(6), and 20(a) by Quicken
Loan's Inc. (“Quicken Loans”); (iii) pursuant
to Federal Rules of Civil Procedure 8(a) and 12(b)(6) by
Mortgage Electronic Registration Systems, Inc.
(“MERS”) and MERSCORP Holdings, Inc.
(“MERSCORP Holdings”); (iv) pursuant to Federal
Rules of Civil Procedure 8(a)(2), 12(b)(6), 20(a), and 21 by
Wells Fargo & Company (“WFC”); (v) pursuant
to Federal Rules of Civil Procedure 8(a)(2), 12(b)(6), 20(a),
and 21 by HSBC Bank USA, N.A. (“HSBC”), and (vi)
pursuant to Federal Rules of Civil Procedure 8(a), 12(b)(6),
and 20(a) by SunTrust Banks, Inc. (“SunTrust”).
For the following reasons, the Court grants Defendants'
initially filed a pro se Complaint in this action on
June 8, 2016. On July 5, 2016, we dismissed Plaintiffs'
Complaint, without prejudice, for violating Rules 8, 20, and
23. At that time, we urged Plaintiffs to seek counsel to
assist with drafting a new Complaint and to be sensitive to
joinder of the various parties. Plaintiffs retained counsel
and filed a Second Amended Complaint (the “SAC”).
BAC contends in their Motion to Dismiss that “despite
counsel's involvement, the SAC remains unintelligible and
fatally flawed.” We agree.
SAC, thirty-nine Plaintiffs are suing seventeen Defendants.
Plaintiffs allege that Defendants improperly disseminated
their private and confidential information, which Defendants
allegedly obtained while servicing Plaintiffs' mortgages.
Based on this, Plaintiffs bring claims under the Stored
Communications Act (“SCA”); the
Gramm-Leach-Bliley Act (“GLBA”); the Fair Credit
Reporting Act (“FCRA”); the Declaratory Judgment
Act (“DJA”), and a claim for unjust enrichment.
Additionally, Plaintiffs argue that Defendants violated the
Real Estate Settlement Procedures Act (“RESPA”)
by mishandling their qualified written requests. However,
Plaintiffs have not alleged sufficient facts to support the
survive a motion to dismiss, the complaint must
“contain a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a). The pleading standard set forth in Rule
8(a) “requires more than labels and conclusions.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). A “complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is
plausible on its face.”' Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Additionally, Rule
8(a)(2) precludes lumping plaintiffs and defendants together
without clarifying which plaintiff alleges what wrongdoing
against which defendant. See Bank of Am., N.A. v.
Knight, 725 F.3d 815, 818 (7th Cir. 2013)
(“Liability is personal . . . Each defendant is
entitled to know what he or she did that is asserted to be
wrongful. A complaint based on a theory of collective
responsibility must be dismissed.”). Lastly, Rule 8(a)
“demands more than an unadorned,
Iqbal, 556 U.S. at 678.
the SAC is devoid of meaningful alleged facts. Instead,
Plaintiffs plead vague and conclusory allegations against
unspecified “defendants.” For example, Plaintiffs
assert “Defendants negligently violated the FCRA by
failing to adopt and maintain procedures designed to protect
and limit the dissemination of Plaintiffs' and Class
Members' private and confidential information for the
permissible purposes outlined by the FCRA.”).
Additionally, Plaintiffs claim that “Defendants'
actions have secured an additional unjust and wrongful
windfall, in that they have received the benefits of a
mortgage loan and they have collected fees and penalties
without a legal basis to do so.” The Complaint is
overflowing with statements similar to these.
“Complaints [are] wanting when they present vague,
confusing, and conclusory articulation of the factual and
legal basis for the claim and [take] a general kitchen sink
approach to pleading the case.” Cincinnati Life
Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013).
More work needs to be done to remake the remaining
allegations into intelligible claims compliant with Rule
the SAC still fails to demonstrate why such individual
financial institutions should be joined in one proceeding. As
we stated in our Order dismissing Plaintiffs' initial
[i]n the event Plaintiffs attempt to file an amended
complaint, they are reminded that Rule 20(a)(2) of the
Federal Rules of Civil Procedure allows for multiple
defendants to be “joined in one action” if
“any right to relief is asserted against them
jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of
transactions or occurrences” and “any
question of law or fact common to all defendants
will arise in the action.” Fed.R.Civ.P. 20(a)(2)
(emphasis added). If these requirements cannot be met as to
all defendants in one action, one or more plaintiffs would be
required to sue one or more defendants in separate actions in
which the requirements of Rule 20(a)(2) could be met.
have not followed our advice. The claims against Defendants
do not arise out of the same or related transactions.
Plaintiffs do not offer a single factual allegation that
connects these various Defendants-many of which are
competitors who maintain their own consumer records. See
DirecTV, Inc. v. Perez, 2003 WL 22682344, at *1(N.D.
Ill. Aug. 2003) (“[N]one of the Defendants are alleged
to have acted in concert with any of the others, ” and
“the facts relating to the transaction of one Defendant
are distinct from the facts relating to the transaction of
each of the other Defendants.”). Likewise, Plaintiffs
have alleged scant facts to suggest that their claims are
are only two Plaintiff-specific allegations in the SAC, and
both claims are divergent. For instance, Plaintiff Cheryl
Bell claims that her loan was modified without her consent in
November 2014 following a data breach at her servicer.
However, Plaintiff Darren Woodgett claims that an unspecified
Defendant originated two loans in Woodgett's name in 2005
and 2006 while he was incapacitated or hospitalized.
the general claim that forms the basis for the SAC, that
Plaintiffs had their identities stolen, are related to one
another “in the same way that purchases of milk from a
grocery store are logically related: each transaction
involves a transaction in a similar good for a similar
purpose.” Perez, 2003 WL22682344 at *1. Here,
assuming Plaintiffs' allegation regarding the
dissemination of their private information is true, whether
there was a system-wide privacy breach or a Plaintiff-level
privacy breach, a breach of privacy by one Defendant would be
entirely unrelated to a privacy breach by any other
Defendant. Therefore, even if Plaintiffs were victims of a
system-wide data breach at their respective banks, we find it
improper to join their claims with other Plaintiffs who are
victims of a breach at another bank.
these reasons, Defendants' Motions to Dismiss are
granted, and Plaintiffs' Complaint is dismissed without
prejudice. Plaintiffs likely predicted this outcome because
they have requested leave to file a third amended complaint.
We grant their motion. Plaintiffs are given 30 days from the
date of this Order to file a third amended complaint.
Plaintiffs and their newly retained counsel are strongly
encouraged to once again consider that if they cannot meet