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MSCI 2006-IQ11 Logan Boulevard Limited Partnership v. Greater Lewistown Shopping Plaza, L.P.

United States District Court, M.D. Pennsylvania

February 2, 2017

MSCI 2006-IQ11 Logan Boulevard Limited Partnership a Delaware limited partnership, Plaintiff,
v.
Greater Lewistown Shopping Plaza, L.P., a Pennsylvania limited partnership, Defendant.

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge.

         I. Background

         On October 17, 2016, Plaintiff, MSCI 2006-IQ11 Logan Boulevard Limited Partnership, a Delaware limited partnership, hereinafter “MSCI” or “Plaintiff” filed commercial mortgage foreclosure action against Defendant, Greater Lewistown Shopping Plaza, L.P., a Pennsylvania limited partnership, hereinafter “Lewistown Shopping Plaza” or “Defendant.” Plaintiff filed a Motion to Appoint a Receiver[1]on November 16, 2016 requesting the appointment of a receiver to operate and manage the mortgaged property of borrower as borrower has allegedly been in default on its $10, 500, 000 mortgage since March 2016.

         On November 18, 2016, I granted the motion in part and denied it in part; I indicated that the mortgage did allow for Court appointment of a receiver, but further indicated that the proposed order filed by Plaintiff was broader than the scope of the mortgage, and I was not prepared to grant that ex parte. ECF No. 7. That same date, Plaintiff filed its affidavit of service of summons, indicating that Defendant had been served with process. Prior to Plaintiff filing a renewed motion for appointment of a receiver (which will be disposed of by separate Order), Defendant filed the instant motion to dismiss based on Federal Rules of Civil Procedure 12(b)(1) and (6). This motion then is the subject of the instant Memorandum Opinion.

         II. Discussion

         a. Federal Rule of Civil Procedure 12(b)(1):

         i. Standard of Review under Rule 12(b)(1):

         “If a party asserts several objections and defenses to a complaint, including a F.R.C.P. 12(b)(1) defense for lack of subject matter jurisdiction, “the cases are legion stating that the district court should consider the Rule 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined by the judge.””[2]

         Additionally, “[t]he procedure under a motion to dismiss for lack of subject matter jurisdiction is quite different” from the familiar procedure under Rule 12(b)(6).[3] “At the outset we must emphasize a crucial distinction, often overlooked, between 12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings.”[4] “The facial attack does offer similar safeguards to the plaintiff: the court must consider the allegations of the complaint as true.”[5]“The factual attack, however, differs greatly, for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56.”[6] “Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction (its very power to hear the case) there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.”[7] “In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.”[8] “Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.”[9]

         ii. Analysis:

         Lewistown Shopping Plaza asserts that this Court does not have subject matter jurisdiction because there is not diversity of citizenship as required by 28 U.S.C. Section 1332.[10] It argues that diversity is defeated based on the date the complaint was filed.

         Defendant is domiciled in the Commonwealth of Pennsylvania. A third mortgage assignment, to Plaintiff, a State of Ohio domiciliary, was dated on October 13, 2016, but it was not recorded until October 18, 2016, one day after the complaint was filed. Defendant therefore argues that this Court does not have jurisdiction because the mortgage was still held by the second mortgage assignee, a Pennsylvania domiciliary, as of the filing of the complaint.

         I respectfully disagree and reject Lewistown Shopping Plaza's argument. Defendant focuses on the recording date. The date that would commence privity of contract between these two parties is, however, the assignment date. “The assignment of a mortgage confers standing to the assignee, even in some cases, unlike the instant case, where the assignment was not recorded.”[11] Accordingly, I am satisfied that there is complete diversity of citizenship[12] sufficient to confer jurisdiction on this Court. I turn now to Defendant's motion under Fed.R.Civ.P. 12(b)(6).

         b. Federal Rule of Civil Procedure 12(b)(6):

         i. Standard of Review under Rule 12(b)(6):

         Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a motion to dismiss for “failure to state a claim upon which relief can be granted.” Such a motion “tests the legal sufficiency of a pleading” and “streamlines litigation by dispensing with needless discovery and factfinding.”[13] “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”[14] This is true of any claim, “without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one.”[15]

         Beginning in 2007, the Supreme Court of the United States initiated what some scholars have termed the Roberts Court's “civil procedure revival” by significantly tightening the standard that district courts must apply to 12(b)(6) motions.[16] In two landmark decisions, Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal, the Roberts Court “changed . . . the pleading landscape” by “signal[ing] to lower-court judges that the stricter approach some had been taking was appropriate under the Federal Rules.”[17] More specifically, the Court in these two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and replaced it with a more exacting “plausibility” standard.[18]

         Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”[19] “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.”[20] “Although the plausibility standard does not impose a probability requirement, it does require a pleading to show more than a sheer possibility that a defendant has acted unlawfully.”[21] Moreover, “[a]sking for plausible grounds . . . calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of [wrongdoing].”[22]

         The plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”[23] No matter the context, however, “[w]here a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'”[24]

         When disposing of a motion to dismiss, a court must “accept as true all factual allegations in the complaint and draw all inferences from the facts alleged in the light most favorable to [the plaintiff].”[25] However, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.”[26] “After Iqbal, it is clear that conclusory or ‘bare-bones' allegations will no longer survive a motion to dismiss.”[27] “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”[28]

         As a matter of procedure, the United States Court of Appeals for the Third Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, it must tak[e] note of the elements [the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there are well-pleaded factual allegations, [the] court should ...

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