United States District Court, D. New Jersey
C. CECCHI, U.S.D.J.
matter comes before the Court upon motion of Defendants Wells
Fargo Bank N.A. ("Wells Fargo") and Select
Portfolio Servicing, Inc. ("SPS") (collectively
"Moving Defendants") to dismiss pro se
Plaintiff Javon Higgins's ("Plaintiff) Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No.
35. Plaintiff opposes the motion. ECF No. 41. Also before the
Court are Plaintiffs motions to restore electricity, for
sanctions pursuant to Federal Rule of Civil Procedure 11, to
join Milstead and Associates, LLC ("Milstead") as a
defendant, and for preliminary injunctive relief. ECF Nos.
36, 38, 45, 47. Moving Defendants opposed the motions to
restore electricity, for sanctions, and for preliminary
injunctive relief. ECF No. 39, 48. No oral argument was
heard. See Fed.R.Civ.P. 78. For the reasons set forth below,
Moving Defendants' motion is granted, claims against the
remaining Defendants are dismissed, and Plaintiffs motions are
Javan Higgins is a resident of the property located at 207
Heywood Ave, Orange, New Jersey (the "Property").
Fourth Amended Complaint ("Compl."), ECF No. 34, at
l.Plaintiffs former girlfriend, Anne Marie
Ward, was the owner of the Property and executed a mortgage
on the Property in 2005. Brief in Support of Motion to
Dismiss Plaintiffs Fourth Amended Complaint ("Def
Mot."), ECF No. 35 at 2. The Complaint states Plaintiff
and Ms. Ward executed a lease with an option to buy and a
quitclaim deed, giving Plaintiff and his company an interest
in the Property. Compl. ¶ 6.
default judgment in a foreclosure action was entered against
Ms. Ward on June 16, 2008. Def. Mot. at 2. On March 6, 2009,
following a Sheriffs sale, a Sheriffs Deed was delivered to
Defendant Wells Fargo, as Trustee, on behalf of the
Certificate holders of Secured Asset Backed Receivables LLC
Trust 2005-FR3, Mortgage Pass-Through Certificates, Series
2005-FR3 (the "Trust"). Def. Mot. at 1, Ex.
SPS is the loan servicer of the Trust. Def. Mot. at 2.
Despite this sale, Plaintiff has remained on the property.
Def. Mot. at 3.
filed eight separate bankruptcy petitions between 2009 and
2015. Def. Mot. At 5. Plaintiff also filed his first federal
complaint regarding the foreclosure action in this district
in 2013. See Higgins v. Milsted & Associates.
LLC. No. 14-cv-5917-MCA-LDW (D.N.J. May 19, 2016). Judge
Madeline Cox Arleo dismissed that action with prejudice in
May 2016. See Id. ECF No. 12.
initiated this action against Moving Defendants on February
24, 2015, alleging Defendant Wells Fargo failed to provide
electricity to the Property. ECF No. 1. Additionally,
Plaintiff filed a state court action, docketed in the
Superior Court of New Jersey, Essex County, at Case No.
DC-3526-15 (the "State Action"). Def. Mot. at 3.
Plaintiff filed his First Amended Complaint on June 5, 2015,
in which he named the Municipal Defendants and Milstead, and
his Second Amended Complaint on July 6, 2015. ECF Nos. 12,
and August 2015, Moving Defendants and Municipal Defendants
filed independent motions to dismiss the Second Amended
Complaint. ECF Nos. 16, 19. On September 29, 2015 Plaintiff
filed a Motion for Leave to File an Amended Complaint, to
which he attached his proposed Third Amended Complaint. ECF
No. 20. The Court granted Plaintiffs motion on February 29,
2016, and denied Defendants' pending motions to dismiss
as moot. ECF No. 26. Plaintiff sought an extension of time to
file with Judge Mark Falk, and filed the Fourth Amended
Complaint ("the Complaint") on April 6, 2016. ECF
Nos. 31, 34.
Wells Fargo brought an eviction action against Plaintiff in
Landlord Tenant Court for nonpayment in 2015. Def. Mot. at 5.
That action was stayed and dismissed without prejudice
because of Plaintiff s multiple bankruptcy filings.
Id. Movants filed a second eviction action on
December 17, 2015. Id. The second eviction action
proceeded to trial on March 7, 2016 in the Superior Court of
New Jersey, Essex County. See Id. at Ex. 5. During
this proceeding, the court granted possession of the Property
to Defendant Wells Fargo. Id. at 27.
March 3, 2016, Plaintiff filed a Motion to Stay in this
Court, and on March 15, 2016, he filed a Motion for an Order
to Show Cause. ECF Nos. 27, 29. On March 31, 2016, this Court
denied both of Plaintiff s motions. ECF No. 33. On April 28,
2016, Moving Defendants filed the instant motion to dismiss.
Municipal Defendants and Milstead have not moved as to
Plaintiffs Fourth Amended Complaint.
Dismissal Pursuant to Federal Rule of Civil Procedure Rule
complaint to survive dismissal pursuant to Federal Rule of
Civil Procedure 12(b)(6), it "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 (2009) (quoting Bell Atl.
Corp. v. Twombly. 550 U.S. 544, 570 (2007)). In
evaluating the sufficiency of a complaint, the Court must
accept all well-pleaded factual allegations in the complaint
as true and draw all reasonable inferences in favor of the
non-moving party. See Phillips v. Cnty. of
Allegheny. 515 F.3d 224, 234 (3d Cir. 2008). However,
"the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice." Iqbal, 556 U.S. at 678. "Factual
allegations must be enough to raise a right to relief above
the speculative level." Twombly. 550 U.S. at
555. "A pleading that offers labels and conclusions will
not do. Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement."
Iqbal, 556 U.S. at 678 (internal citations omitted).
Liberal Pleading Standard for Pro
Plaintiff is a. pro se litigant, his filings are
entitled to a liberal construction. See Dluhos v.
Strasbere. 321 F.3d 365, 369 (3d Cir. 2003). A pro
se litigant's complaint is held to "less
stringent standards than formal pleadings drafted by
lawyers." Haines v. Kerner. 404 U.S. 519,
520-21 (1972). This Court therefore has a special obligation
to discern both the nature of the relief and the appropriate
law to govern his request. Id. Courts have a duty to
construe pleadings liberally and apply the applicable law,
irrespective of whether a pro se litigant has
mentioned it by name. Mala v. Crown Bay Marina.
Inc.. 704 F.3d 239, 244 (3d Cir. 2013); Dluhos v.
Strasberg. 321 F.3d 365, 369 (3d Cir. 2003); Higgins
v. Bever. 293 F.3d 683, 688 (3d Cir. 2002). A pro
se complaint "can only be dismissed for failure to
state a claim if it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief." Estelle v. Gamble. 429
U.S. 97, 106 (1976) (citing Haines. 404 U.S. at