Opinion
Civil Action 20-632
07-20-2020
NATHAN MOAE AWAI, Plaintiff, v. USAA FEDERAL SAVINGS BANK and LAURA BISHOP, Defendants.
Re: ECF No. 21
Joy Flowers Conti District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Nathan Moae Awai (“Plaintiff”) initiated this action pro se with a self-styled “Common Law Tort Claim Petition and Request for a Speedy Trial by Jury Inviolate / Complaint” and paid the required filing fee. Plaintiff alleges claims for breach of contract, fraud, racketeering, conspiracy and “financial discrimination” against Defendants USAA Federal Savings Bank (“USAA FSB”) and Laura Bishop, identified by Plaintiff as the Chief Financial Officer of USAA FSB. ECF No. 1. In his Complaint, Plaintiff challenges the validity of a USAA FSB mortgage note executed on September 27, 2018, and alternatively finds fault with Defendants' failure to deem documents he provided as legal tender to satisfy the mortgage.
Defendants present a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6). Upon review of the Complaint, the Court finds that Plaintiff fails to plead facts to support a cognizable claim and recommends that Defendants' Motion to Dismiss be granted.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a mortgage issued by Defendant USSA FSB and executed by Nathan Awai for property in Harrison City, Pennsylvania. ECF No. 21-2. Plaintiff's action turns on two broad theories. First, Plaintiff claims that the USAA FSB mortgage is invalid. The reasons listed include:
Plaintiff's claims are based upon the terms and existence of the mortgage note that were not appended to the Complaint. Defendants have included a copy of the note with their Motion to Dismiss. “[A] court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document. Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document on which it relied.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
(1) The mortgage does not bear the signature of a bank representative,
(2) The mortgage violates the “Gold Repeal Joint Resolution” of 1933,
(3) The mortgage was not executed by the “Lender or the source of the Funds,
(4) The mortgage was entered into at a time Plaintiff contends he was an infant and “lost at sea, ” and thus any contract entered into by him is void ab initio (this claim is advanced despite Plaintiff's inclusion of a copy of his birth certificate as an exhibit to the Complaint indicating he was born on January 31, 1973, ECF No. 1-1 at 14),
(5) USAA FSB's securitization of the mortgage (through an unspecified “warehouse line of credit”) led to repayment by others, including investors, so that no money remains due and owing,
(6) The National Bank Act of 1864 renders the provision of credit illegal, and therefore invalidates the mortgage, and
(7) Because USAA FSB may have sold the obligation, it is “the “Borrower and Debtor and Not the Creditor” under federal and state law as well as the “Federal Code of the District of Columbia.”
ECF No. 1 at 1-10. Plaintiff contends that as a result of the invalid mortgage, USAA FSB wrongfully used his property in commercial transactions and caused Plaintiff to lose “tens or hundreds of thousands of dollars in interest for the use of his third party of interest property.” Id. at 11. Plaintiff does not allege any pending foreclosure proceedings or other injury independent from the existence of this obligation.
Plaintiff's second theory is that USAA FSB is in breach of a “Credit Agreement Payoff Security Instrument” submitted by Plaintiff to discharge and satisfy the mortgage. Id. at 1. The form document, “Negotiable Security No. 0000168735, ” identifies Plaintiff as a “Registered Private Banker.” ECF No. 1-1 at 2. The bank, “Private Bankers Bank, ” is a “common law national banking association.” Id. at 7-11. Plaintiff submits a form “Lien Release” issued by him on November 27, 2019. Plaintiff mailed this instrument to an individual identified as the “Head of the Collection Department” for “Investor Ginnie Mae, ” and claims that according to the Uniform Commercial Code, the document constitutes repayment of a debt owed to “GINNIE MAE, U.S. TREASURY, USAA MORTGAGE, OR NATIONSTAR MORTGAGE, LLC D/B/A MR. COOPER.” Id. at 6. Plaintiff alleges that USAA FSB's failure to accept these documents as payment in full for his mortgage note violates the mortgage contract as well as federal securities law. ECF No. 1 at 12. Despite the obvious effort taken by Plaintiff to obtain, execute, notarize and submit these forms, the Court takes judicial notice that the Federal Bureau of Investigation has warned that similar documents bear the earmarks of attempted “Bond Fraud.”
See, https://www.fbi.gov/scams-and-safety/common-scams-and-crimes/redemption-strawman-bond-fraud.
Defendants have filed a Motion to Dismiss raising the absence of subject matter jurisdiction, Plaintiff's failure to properly effectuate service on either Defendant, and Plaintiff's failure to state a claim upon which relief may be granted. Plaintiff has filed a Brief in Opposition to the Motion to Dismiss and a Response in Opposition to the Motion to Dismiss. ECF Nos. 23 and No. 24. Plaintiff also has responded separately to Defendants' contentions over ineffective service of the Complaint with an “Affidavit of Non-Service, ” suggesting that through an agent, he attempted service upon Defendants' counsel in Philadelphia, Pennsylvania, but was unsuccessful. ECF No. 26. The Motion to Dismiss is now ripe for consideration.
B. LEGAL STANDARD
1. Motion to Dismiss
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). While a complaint does not need detailed factual allegations to survive the motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and sufficient “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570.
“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully....Where 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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
In other words, at the motion to dismiss stage, a plaintiff is required to make “a showing' rather than a blanket assertion of an entitlement to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). “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.'” Id. at 234, quoting Twombly, 550 U.S. at 556 n. 3.
To determine the sufficiency of a complaint, “a court ... must take three steps, ” that include (1) taking note of the elements a plaintiff must plead to state a claim; (2) identifying allegations that are merely legal conclusions “because they ... are not entitled to the assumption of truth;” and (3) assuming the veracity of all well-pleaded factual allegations and determining “whether they plausibly give rise to an entitlement to relief.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675, 679). If the court finds, even after construing the complaint in the light most favorable to the plaintiff, that the plaintiff is not entitled to relief, the court can dismiss the claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
2. Pro Se Pleadings and Filings
Pro se pleadings and filings, “however inartfully pleaded, ” must be held to “less stringent standards than formal pleadings drafted by lawyers” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Department of Corr., 949 F.2d 360 (10th Cir. 1991).
Yet there are limits to the court's procedural flexibility - “pro se litigants still must allege sufficient facts in their complaints to support a claim ....they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Because Plaintiff is a pro se litigant, the Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
Plaintiff's theories appear to be variations of the “vapor money” theory or the “unlawful money” theory that emanate from the sovereign citizen movement. The Court acknowledges that Plaintiff denies that he is an adherent of these theories “because [he] is a law abiding INFANT according to commercial law.” ECF No. 1 at 12. That said, Plaintiff's arguments mirror attempts to disavow legal obligations based on this movement. As explained in Richardson v. Deutsche Bank Trust Company Americas, No. 3:08-cv-01857, 2008 WL 5225824 (M.D. Pa. Dec. 2, 2008) (quoting Demmler v. Bank One NA, No. 2:05-CV-322, 2006 WL 640499 (S.D. Ohio Mar. 9, 2006)):
Plaintiff alleges that the promissory note he executed is the equivalent of “money” that he gave to the bank. He contends that [the bank] took his “money, ” i.e., the promissory note, deposited it into its own account without his permission, listed it as an “asset” on its ledger entries, and then essentially lent his own money back to him. He contends that [the bank] did not actually have the funds available to lend to him, but instead “created” the money through its bookkeeping procedures. He further argues that because [the bank] was never at risk, and provided no consideration, the promissory note is void ab initio and Defendants' attempts to foreclose on the mortgage are therefore unlawful.
Demmler, 2006 WL 640499 at *3. This same, or similar, argument has been tried and consistently rejected in federal courts across the country, and like every court previously encountering this argument, the Demmler court found the complaint “utterly frivolous and lack[ing] any legal foundation.” Id.; see also Frances Kenny Family Trust v. World Savings Bank, 2005 U.S. Dist. LEXIS 2403, No. C04-03724 WHA, 2005 WL 106792 (N.D. Cal. Jan. 19, 2005) (sanctioning plaintiffs and rejecting their “vapor money” theory); Carrington v. Fannie Mae, 2005 U.S. Dist. LEXIS 31605, No. 05-cv-73429-DT, 2005 WL 3216226, at *3 (E.D. Mich. Nov. 29, 2005) (finding “fundamentally absurd and obviously frivolous” plaintiff's claim that the lender unlawfully “created money” through its ledger entries); United States v. Schiefen, 926 F.Supp. 877, 880-81 (D.S.D. 1995) (rejecting arguments that there was insufficient consideration to secure the promissory note, and that lender had “created money” by means of a bookkeeping entry); Thiel v. First Fed. Savings & Loan Ass'n of Marion, 646 F.Supp. 592 (N.D. Ind. 1986) (rejecting claims that lender had violated RICO and the National Bank Act by issuing loan check in exchange for promissory note, and imposing sanctions on plaintiffs for bringing frivolous action); Rene v. Citibank, 32 F.Supp.2d 539, 544-45 (E.D.N.Y.1999) (rejecting claims that because lender did not have sufficient funds in its vault to make the loan, and merely “transferred some book entries, ” the lender had created illegal tender).Richardson v. Deutsche Bank Tr. Co. Americas, No. CIV. A 3:08-CV-01857, 2008 WL 5225824, at *6-7 (M.D. Pa. Dec. 12, 2008).
After reviewing Plaintiff's Complaint in detail and the opinions of federal courts previously encountering similar allegations, the Court agrees and also finds that Plaintiff's Complaint is patently frivolous.
For the sake of completeness, the Court will briefly address Plaintiff's alleged claims and the grounds for dismissal raised by Defendants.
1. Breach of Contract
Plaintiff alleges that USAA FSB and Bishop have breached the USAA FSB mortgage note and his “Credit Agreement Security Instrument Payoff” first, by failing to present a “blue inked NOTE and Mortgage Contract” and second, by failing to honor the “new credit agreement” “presented by” Plaintiff. ECF No. 1 at 13-14. Defendants seek to dismiss Plaintiff's breach of contract claim as lacking legal merit. ECF No. 22 at 10.
Plaintiff's argument as to the claimed requirement for a “blue inked Note” to render USAA FSB's mortgage valid has been rejected as meritless. “[C]ourts have routinely rejected the ‘show me the note' theory on the ground that foreclosure statutes simply do not require production of the original note.” Gallant v. Deutsche Bank Nat. Trust. Co., 766 F.Supp.2d 714, 720 (W.D. Va. 2011). In this regard, Pennsylvania law does not measure the validity of a mortgage upon production of the original note and, where necessary, permits authentication of a copy in accordance with 13 Pa. C.S. §§ 3309 (enforcement of lost, destroyed or stolen instrument). Nor does Plaintiff allege that the mortgage is in foreclosure or that he has suffered the loss of any benefit derived from its execution so that the original note is required. Accordingly, Plaintiff's demand for the original note does not state a claim upon which relief may be granted.
As to Plaintiff's claim for breach of contract based on his delivery of “Debt Credit Agreement Payoff CAP Security Note, No. 000168735, ” Plaintiff fails to state a claim upon which relief may be granted. To prove breach of contract, Plaintiff must plead facts showing (1) the existence of a contract, including its essential terms, (2) a breach of the contract; and (3) resultant damages. Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016). This in turn, requires evidence of “an offer, acceptance, consideration or mutual meeting of the minds. A ‘meeting of the minds' occurs when both parties mutually assent to the same thing, as evidenced by the offer and its acceptance.” Aircraft Guar. Corp. v. Strato-Lift, Inc., 103 F.Supp.2d 830, 835-36 (E.D. Pa. 2000) (internal citations omitted).
Plaintiff contends that his delivery of documents, backed only by the paper they are printed on, created a binding agreement that requires Defendants to accept the Note as payment in full of his mortgage, even if the Note was “signed or not” because it was “seen.” ECF No. 1 at 14, and ECF Nos. 1-3, 1-4 and 1-6.
Being “seen, ” however, is not enough. “To be a contract, the offer must be accepted. An offeree has a right to make no reply to offers, and his silence and inaction cannot be construed as an assent to the offer.” Smithson v. Koons, No. 1:15-cv-1757, 2017 WL 3016165 *5 (M.D. Pa. June 26, 2017) (quoting In re Baum's Estate, 117 A. 684, 685 (Pa. 1922)). In Smithson, the plaintiff argued that defendant had entered into a binding contract based on plaintiff's mailing of a “801 Notice” and then breached the contract by failing to pay him money in accordance with the contact provisions. The Court rejected this contention as based on “an indisputably meritless legal theory” because a “unilateral attempt to impose a contractual obligation [does] not create a duty on the part of the defendants to respond, and their mere silence ... could not create a valid contract.” Id. Plaintiff's claim here “thus ... is legally frivolous” and should be dismissed with prejudice. Id.
1. Fraud
Plaintiff alleges that Defendants have filed a counterfeit copy of the original mortgage in the county records “through REDACTION, ” and have thereby committed “fraud in the factum” upon the Court. ECF No. 1 at 14. Plaintiff claims that Defendants also have committed fraud by “intentionally avoiding” his “security instrument” after reading the agreement and accepting it “pursuant to BLACK'S LEGAL DICTIONARY.” Id. at 15. Defendants seek to dismiss this claim because Plaintiff fails to state a plausible claim for fraud on which relief may be granted. ECF No. 22 at 10-11. The Court agrees.
To prove common law fraud, a plaintiff must establish:
(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance.Blue Cross Blue Shield Ass'n v. GlaxoSmithKline LLC, 417 F.Supp.3d 531, 563 (E.D. Pa. 2019) (quoting Kit v. Mitchell, 771 A.2d 814, 819 (Pa. Super. Ct. 2001)).
Federal Rule of Civil Procedure 9(b) additionally requires that “in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” This requires plaintiff to allege “all of the essential factual background that would accompany the first paragraph of any newspaper story-that is, the who, what, when, where, and how of the events at issue.” United States ex rel. Bookwalter v. UPMC, 946 F.3d 162, 176 (3d Cir. 2019) (quoting United States ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, 812 F.3d 294, 307 (3d Cir. 2016)) (internal quotations omitted).
Here, Plaintiff's Complaint falls far short of pleading a plausible fraud claim. Plaintiff's claim rests on Defendants' alleged redaction of a mortgage note filed with the county records department and Defendants' failure to accept worthless documents as satisfaction for the mortgage note. Plaintiff does not plead what representations were made, how such representations are false, nor does he allege his “justifiable reliance” or a cognizable injury. Similarly, as set forth with Plaintiff's breach of contract claim, Plaintiff's allegations of fraud related to his “security instrument” hinge on frivolous legal grounds. Under these circumstances, it is recommended that Plaintiff's fraud claim be dismissed with prejudice.
2. RICO, Conspiracy and Racketeering
Plaintiff alleges that Defendants have engaged in “RICO Conspiracy and Racketeering as a Street Gang” because the “securitization of mortgages” results in no consideration for the underlying mortgage. ECF No. 1 at 15-16. Defendants also have not “proven that a mortgage promissory NOTE is actual money in any court.” Defendants seek to dismiss this claim for failing to plead facts establishing any required element under the Racketeer Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961. The Court agrees.
To state a federal RICO claim, a plaintiff must allege: (1) conduct; (2) of an enterprise; (3) through a pattern; (4) of racketeering activity; (5) causing injury to plaintiff's business or property. Sedima, S.P.R.L. vs. Imrex Co., 473 U.S. 479, 496 (1985). A pattern of racketeering activity requires at least two predicate acts. See 18 U.S.C. § 1961(5). Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004), abrogated on other grounds by Twombly, 550 U.S. at 557, as recognized in In re Lipitor Antitrust Litig., 868 F.3d 231, 249 (3d Cir. 2017).
Plaintiff satisfies none of the requirements of a well-plead RICO claim. The factual allegations do not identify any predicate illegal act or conduct, nor allege how Defendants have acted in concert to sustain a conspiracy claim. Rather, Plaintiff alleges a belief that unidentified attorneys have somehow misrepresented a mortgage as something of value. ECF No. 1 at 16. As with Plaintiff's fraud and breach of contract claims, this theory is patently frivolous. Therefore, it is recommended that the Court dismiss Plaintiff's “RICO Conspiracy and Racketeering as a Street Gang” claim with prejudice.
3. Validity of Mortgage (Fourth and Fifth Causes of Action)
Plaintiff brings two claims in his fourth and fifth causes of action of the Complaint related to the validity of the USAA FSB mortgage that repeat his breach of contract and fraud claims. Plaintiff alleges USAA FSB fails to qualify as a “Holder in Due Course” because Defendants have allegedly securitized the loan by sale to a “real estate backed TRUST” and have “accepted” Plaintiff's final payment of the mortgage through his “Credit Agreement Payoff Security Instrument.” ECF No. 1 at 16-17. Plaintiff also alleges that any debt he may have is no longer legally recognized under the combination of unidentified federal and local statues, government policy, the 1933 Bankruptcy Act, the War Powers Act and the Trading with the Enemy Act. Id. Plaintiff repeats his claims regarding his status as an infant as grounds to void the mortgage and claims that he is entitled to a return of any interest received by USAA FSB over the years. Id. 1718. Such allegations do not state a cognizable claim under any identifiable theory of recovery. At best, Plaintiff appears to be restating his fraud and breach of contract claims that on the merits are not viable for the reasons previously explained. Thus, it is recommended that Plaintiff's fourth and fifth causes of action be dismissed with prejudice.
4. Financial Discrimination
Plaintiff's final cause of action relates to Defendants' failure to accept his “State Licensed Credit Agreement Payoff Security Instrument Contract Property” to satisfy his outstanding obligation. ECF No. 1 at 18-20. The Court's liberal interpretation of his claim is that Plaintiff's personal “security instrument” has equal value to the mortgage note executed by him (albeit in his alleged infant status) and as such Defendants' failure to accept his note as payment in full is discriminatory and violates Plaintiff's rights under the “Tender Act; Security Act; FCRA; FCDPA; Civil Rights Act, RICO, Title 12 U.S. Code 24 Paragraph 7, RESPA, and other Banking Laws.” Id. at 18.
Defendants seek dismissal of this claim because Plaintiff cannot point to any legal support for “the existence of a cause of action ... where a bank requires payment in U.S. currency.” ECF No. 22 at 12. The Court agrees that Plaintiff has not stated a claim upon which relief may be granted.
In Nixon v. Individual Head of St. Joseph Mortg. Co., 615 F.Supp. 898 (N.D. Ind. 1985), the district court explained that a similar argument “smacks of bad faith on the part of the plaintiff.”
Nixon obtained the [mortgage company's check in September 1981 and used it to purchase his residence. In late 1984, after the Mortgage Company begins to
proceedings to foreclose the mortgage, Nixon suddenly files this suit seeking in effect to have the loan with which he obtained his residence declared illegal so as to back out of his contractual promise to pay on the loan. He has enjoyed the fruits of what the Mortgage Company's check bought, yet seeks to nullify that check on the basis of an absurd view that bank or mortgage company checks are worthless attempts to create “illegal tender.” Nixon's own experience in getting a residence with the check indicates that the market place recognizes the value of “credit..., ” so that Nixon has suffered no damages and has no valid claim to advance here.Id. at 900-901 (emphasis in original).
Here, Plaintiff has obtained a benefit from a check supplied by USAA FSB. It was that check, backed by USAA FSB's promise to pay the face amount, that enabled him to purchase his Harrison Township property from a third party. The benefit gained when USAA FSB paid the third party was in exchange for Plaintiff's execution of a mortgage. Plaintiff continues to benefit from the mortgage through his apparent ongoing use of the property and, therefore, Plaintiff's argument that the mortgage transaction has no worth is at best misplaced.
As to alleged Defendants' rejection of Plaintiff's “security instrument, ” USAA FSB was free to assess and accept or reject Plaintiff's valuation, represented by him at a sum equal to his outstanding mortgage. Plaintiff undertook a similar valuation exercise when he bought the premises with the disputed mortgage. Plaintiff could accept or reject the property seller's price and execute a contract with the seller at an agreed upon price or refuse to do so. To the extent that Defendants may have accorded no value to Plaintiff's submission, Defendant USAA FSB was well within its rights and Plaintiff points to no support for his contention that this is unlawful discrimination. Accordingly, it is recommended that the Court dismiss Plaintiff's claim for “financial discrimination” with prejudice.
5. Subject Matter Jurisdiction
Alternatively, Defendants move to dismiss this action because Plaintiff does not allege facts plausibly stating that he has sustained an injury necessary for standing to invoke the Court's jurisdiction under Article III of the United States Constitution. ECF No. 22 at 5. Standing limits who can maintain a case in federal court. In the absence of standing, a plaintiff has no “case” or “controversy” empowering the federal court to exercise jurisdiction. U.S. CONST. art. III, § 2.
The United States Supreme Court has explained,
Our cases have established that the “irreducible constitutional minimum” of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. Where, as here, a case is at the pleading stage, the plaintiff must “clearly ... allege facts demonstrating” each element.Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016) (internal citations omitted). The Court finds that to the extent that Plaintiff alleges he remitted a security instrument in satisfaction of his mortgage that was rejected by Defendants, he has alleged - barely so - an injury to sustain the Court's subject matter jurisdiction. Thus, while dismissal with prejudice remains appropriate under Rule 12(b)(6) for failure to state a claim, it is not warranted on jurisdictional grounds. As a result, it is recommended that the Court deny Defendants' Motion to Dismiss on jurisdictional grounds.
Defendants also seek dismissal because Plaintiff failed to properly effect service and, as to Linda Bishop because Plaintiff failed to allege any facts plausibly establishing her involvement in the alleged violation of Plaintiff's common law or statutory rights. ECF No. 22. Because the Court recommends that the Complaint be dismissed with prejudice for failure to state a claim, the Court need not address these otherwise meritorious arguments.
6. Leave to Amend
Dismissal for failure to state a claim is ordinarily without prejudice to a plaintiff's ability to amend his complaint, unless amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 202 (3d Cir. 2002). Here, amendment would be futile. Plaintiff's claims are based upon legally frivolous theories that his mortgage is invalid and that worthless documents created by him satisfy outstanding indebtedness. Dismissal with prejudice and without leave to amend has been deemed appropriate where no amendment could plausibly state a claim for relief under the theories advanced. See Smithson, 2016 WL 4521854, at *5; and see Brown v. Aponte, No. 06-2096, 2006 WL 2869524, at *4 (E.D. Pa. Oct. 3, 2006) (finding amendment under similar circumstances futile). Accordingly, it is recommended that in dismissing Plaintiff's claims, the Court do so with prejudice and without leave to amend.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant Defendants' Motion to Dismiss, ECF No. 21, and dismiss Plaintiff's Complaint with prejudice and without leave to amend.
As a final note, in Coppenge v. Deutsche Bank Nat. Tr., 511 Fed.Appx. 130, 130 (3d Cir. 2013) (per curiam), the United States Court of Appeals for the Third Circuit observed that claims quite similar to those advanced by Plaintiff invoke “alchemistic, archaic, and irrelevant formalism, [and] are unlikely to bring him relief in any court of law[; accordingly, ] he would be wise to direct his energies in a more productive direction.” This advice is appropriate here as well, where it is apparent that Plaintiff has expended a great deal of energy and resources to advance arguments and claims that are incapable of relief under the law.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193