United States District Court, M.D. Tennessee, Cookeville Division
Crenshaw Chief Judge.
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY U.S. MAGISTRATE JUDGE.
before the Court are Motions to Dismiss filed by Green Tree
Servicing LLC, (“Green Tree”)(Docket No. 16) with
supporting memorandum (Docket No. 17); the State of Tennessee
(Docket No. 19) with supporting memorandum (Docket No. 20);
and Smith County, Tennessee (Docket No. 22) with supporting
memorandum (Docket No. 23). The pro se plaintiff has filed a
response to each of the motions. Docket Nos. 28, 40 and 41.
Defendant, Green Tree has filed a reply to plaintiff's
response. Docket No. 34. For the reasons stated herein, the
undersigned recommends that each of the defendants'
motions to dismiss be Granted and that plaintiff's
complaint be dismissed.
filed a complaint against Green Tree, the State of Tennessee
and Smith County, Tennessee arising out of the 2007 purchase
of a foreclosed property in Smith County, Tennessee for which
he was unable to receive a deed. Docket No. 1. Plaintiff
alleges that Green Tree is “guilty of violation of
federal and Tennessee Consumer Protection acts as well as
breach of contract and breach of deed of contract, and
criminal felony fraud and life endangerment.”
Id. He alleges that the State of Tennessee “is
guilty of not enforcing state laws and forcing [the] county
to enforce state laws.” Id. Plaintiff alleges
Smith County is “guilty of Fraud, criminal felony
fraud, and aidding (sic) and a betting (sic) both as well as
life endangerment professinal (sic) mis-contuct (sic) and
negulance (sic).” Id.
Federal Rule of Civil Procedure 12(b)(1)
seeking to dismiss a claim pursuant to Rule 12(b)(1) may
engage in either, (1) a facial attack to the complaint; or
(2) a factual attack on the allegations averred in the
pleadings. See Ohio Nat'l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990). A facial
attack is a challenge to the court's subject matter
jurisdiction that takes the material allegations of the
complaint as true and construes them in the light most
favorable to the nonmoving party. See RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134-35 (6th
Cir. 1996). In contrast, a factual attack is not a challenge
to the sufficiency of the pleading's allegations, but a
challenge to the factual existence of subject matter
jurisdiction. United States v. Ritchie, 15 F.3d 592,
598 (6th Cir. 1994); see also, Ohio Nat'l Life,
922 F.2d at 325.
Federal Rule of Civil Procedure 12(b)(6).
Civ. P. 12(b)(6) provides that a complaint may be dismissed
if it fails to state a claim upon which relief can be
granted. The purpose of this rule is to permit a defendant to
test whether, as a matter of law, the plaintiff is entitled
to relief even if everything alleged in the complaint is
true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.
complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of the complaint which would
entitle the plaintiff to relief. Conley v. Gibson,
355 U.S. 41, 45-46 (1957). In order to preclude dismissal
under Fed.R.Civ.P. 12(b)(6), a complaint must contain either
direct or inferential allegations which comprise all of the
essential, material elements necessary to sustain a claim for
relief under some viable legal theory. Lewis v. ACB
Business Services, Inc., 135 F.3d 389, 406 (6th Cir.
Court is required to construe the complaint in the light most
favorable to the plaintiff and to accept all well-pleaded
allegations of fact as being true. Collins v. Nagle,
892 F.2d 489, 493 (6th Cir. 1989). Despite the Court's
responsibility to liberally construe the complaint in the
plaintiff's favor, ''more than bare assertions of
legal conclusions is ordinarily required to satisfy federal
notice pleading requirements.'' Scheid v. Fanny
Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.
1988). Accordingly, the Court does not have to accept as true
mere legal conclusions and unwarranted inferences of fact.
Morgan v. Churchs Fried Chicken, 829 F.2d 10, 12
(6th Cir. 1987).
while pro se complaints are to be construed liberally
(Haines v. Kerner, 404 U.S. 519, 520 (1972)), that
liberality does not allow a court to conjure up unpled facts.
McFadden v. Lucas, 713 F.2d 143, 147 n.4 (5th Cir.
1983); Slotnick v. Staviskey, ...