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Marangos v. Swett

September 30, 2008


The opinion of the court was delivered by: Wolfson, United States District Judge


Presently before the Court are motions by Defendants Cecily Catherine Swett ("Swett"); Land Options Inc. ("Land Options"); Select Portfolio Servicing Inc.("Select Portfolio"); Option One Mortgage Corp. ("Option One"); and Performance Credit Corp.("Performance Credit"),*fn1 to dismiss all claims, pursuant to Fed. R. Civ. P. 12(b)6, of Plaintiff Vassos Marangos, pro se.*fn2

Initially, Plaintiff alleges, pursuant to 42 U.S.C. § 1983, that Defendants violated his Fourteenth Amendment right by depriving him of property rights following the refinancing of his home. Plaintiff also asserts that Defendants are in violation of Federal Truth in Lending Act ("TILA"),

15 U.S.C. § 1601, et seq. In addition, Plaintiff further alleges a violation of 18 U.S.C. § 1962(c), contending that Defendants conspired to ruin him financially through a fraudulent scheme arising from Plaintiff's refinancing of his home. Plaintiff additionally alleges several state law claims of fraud, deception, and invasion of privacy against Swett. Finally, Plaintiff asserts state law claims against Defendants, including negligent and intentional infliction of emotional distress. For the reasons that follow, the Court grants Defendants' motions to dismiss all federal claims and declines to exercise supplemental jurisdiction over Plaintiff's state law claims.

I. Facts

Since Defendants move to dismiss Plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(6), the following version of events assumes Plaintiff's allegations to be true. Additionally, the Court incorporates Plaintiff's factual allegations as stated in this Court's Opinion dated September 29, 2008, dismissing Plaintiff's claims with prejudice against Defendant the Honorable Michael J. Guadagno, New Jersey Superior Court Judge ("Judge Guadagno"). The Court will recount facts only relevant to this Motion.

Plaintiff alleges that his former spouse, Swett, used information from their divorce proceeding in January 2006, to put an "illegal" lis pendens on Plaintiff's house in February 2006. (Compl. ¶¶ 35-36.) Although Plaintiff was represented by counsel in his matrimonial case, Plaintiff is proceeding in the present matter as a pro se litigant.*fn3 Plaintiff returned to New Jersey from California in 2006. Upon his return, Plaintiff decided to refinance one of the marital homes through APEX in order to settle his debts and pay for his living expenses. (Compl. ¶ 31.) Plaintiff admits he signed his loan papers in July 2006 "without even looking at them." (Compl. ¶ 33.) Plaintiff alleges, however, APEX did not inform him there was a lis pendens on the home at that time. (Compl. ¶ 124.) After learning of the lis pendens, in August 2006, Plaintiff "requested a meeting with the Monmouth County Prosecutor located in Freehold[,] NJ where he reported the unlawful Lis pendens as a financial crime and asked for an investigation." (Compl. ¶ 45.)

Plaintiff alleges that sometime in September 2006, Land Options, on its own accord, withdrew $19,331 from Plaintiff's frozen funds and distributed it "to the Child Support agency." (Compl.¶ 41.) In October 2006, Select Portfolio came into the picture, purchasing Plaintiff's refinance loan from Option One. (Compl. ¶63.) During a recess at a court hearing held on March 14, 2007, Plaintiff alleges Judge Guadagno contacted Land Options, ordering it to release $16,395 to Swett from the refinancing funds held in escrow. (Compl. ¶ 67.) Plaintiff further alleges that Judge Guadagno contacted Land Options on one other occasion to inquire as to the amount still held. (Compl. ¶ 92.)

Plaintiff filed this Complaint in United States District Court for the District of New Jersey on December 13, 2007. (Compl. ¶¶ 37-38.) Plaintiff contends that because APEX "withheld information from plaintiff during the application process [to refinance Plaintiff's house] that there was an (illegal and secret) [l]is pendens on [P]laintiff's house [of which Plaintiff was not aware.]" (Compl. ¶ 33.) Plaintiff seeks damages from Defendants, "individually, jointly and severally" in relation to this count of the Complaint. (Compl. ¶ 29.) Plaintiff, however, did not include a request for rescission in his prayer for relief. (See Compl. ¶¶ 29-30.) On February 4, 2008, Land Options filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Other Defendants followed suit, including Swett on February 21, 2008, Select Portfolio and Option One on March 27, 2008, and Performance Credit on March 28, 2008. Plaintiff filed a cross-motion for the appointment of a special prosecutor on April 7, 2008, which Plaintiff withdrew with this Court's approval on September 16, 2008.

II. Discussion

A. Standard of Review

When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations omitted). Recently, in Bell Atlantic Corporation v. Twombly, 127 S.Ct. 1955 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a 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 his claim which would entitle him to relief." Id. at 1968 (quoting Conley, 355 U.S. at 45-46).

Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. As the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965).

B. Plaintiff's 42 U.S.C. 1983 Claims

Plaintiff alleges, pursuant to 42 U.S.C. § 1983, that Defendants violated his Fourteenth Amendment property rights.Specifically, Plaintiff asserts that Defendants were acting under the color of state law when they unlawfully transferred the majority of Plaintiff's funds held in escrow to Swett.In response, Defendants contend that Plaintiff's 1983 claim should be dismissed because none of the defendants were acting under the color of state law as required by 42 U.S.C. § 1983.

Section 1983 provides, in pertinent part, that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable ...

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