Youseline Dophin v. Bank of America Mortgage , 641 F. App'x 131 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-3138
___________
YOUSELINE DOPHIN,
Appellant
v.
BANK OF AMERICA MORTGAGE COMPANY;
BANK OF AMERICA HOME LOAN
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-14-cv-03193)
District Judge: Honorable Peter G. Sheridan
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 25, 2016
Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges
(Opinion filed: February 1, 2016 )
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OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Youseline Dophin appeals the District Court’s order granting the
defendant’s motion to dismiss her second amended complaint. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and exercise a plenary standard of review. See Connelly v.
Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013). For the reasons set forth
below, we will affirm the District Court’s judgment.
Dophin filed her initial complaint against defendant Bank of America, N.A.
(BANA) in May 2014. She alleged that she initially obtained a mortgage loan for her
home from Countrywide, and that BANA took over the loan after acquiring Countrywide.
She claimed, generally, that BANA is corrupt, has kept her from working, and otherwise
caused her difficulties. BANA filed a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. The District Court granted BANA’s motion, but gave
Dophin leave to amend her complaint. Dophin filed an amended complaint, BANA filed
another Rule 12(b)(6) motion, and the District Court again granted the motion but invited
amendment.
Dophin then filed a second amended complaint, which is at issue in this appeal.
She complained that BANA had acquired her mortgage without her consent, had limited
her ability to work, had sent an employee to her home to talk to her without her
permission, and had engaged in other debt collection or foreclosure activities. She
alleged that this conduct violated her rights under the Fourth, Fifth, and Ninth
Amendments; she also raised claims of fraud, intentional infliction of emotional distress,
unjust enrichment, and invasion of privacy. BANA filed a motion under Rule 12(b)(6)
and, after holding a hearing, the District Court granted BANA’s motion and dismissed
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the second amended complaint with prejudice. Dophin filed a timely notice of appeal to
this Court.
In support of her appeal, Dophin has filed an informal brief, which, instead of
presenting specific challenges to the District Court’s opinion, states only, “I disagree with
the Judge[’s] decision which my complaint is dismissed with prejudice.” Br. at 1.
Because Dophin is proceeding pro se, we construe her brief liberally. See, e.g., United
States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007). At the same time, we will review only
those arguments that she has actually presented. See United States v. Pelullo, 399 F.3d
197, 222 (3d Cir. 2005) (“It is well settled that an appellant’s failure to identify or argue
an issue in his opening brief constitutes waiver of that issue on appeal.”); see also Timson
v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (“While we read briefs filed
by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed
abandoned[.]” (internal citation omitted)). Dophin has not adequately presented any
issue for our review.
In the interest of completeness, however, we have independently reviewed her
claims and the District Court’s opinion, and conclude that the Court did not err in
dismissing her second amended complaint. To survive a motion to dismiss, a complaint’s
“[f]actual allegations must be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice”; neither does “an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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As the District Court explained, while Dophin raised a host of legal theories, she
has failed to state a claim under any theory. To pursue a constitutional claim under 42
U.S.C. § 1983, a plaintiff “must establish that she was deprived of a federal constitutional
or statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009)
(emphasis added). Dophin has made no effort to establish that BANA is a state actor,
which is fatal to her constitutional claims. See generally Apao v. Bank of N.Y., 324 F.3d
1091, 1095 (9th Cir. 2003).
Further, while Dophin repeatedly accuses BANA of fraud, she has not identified a
“material misrepresentation of fact” that she relied on to her detriment, which is the
foundation of a fraud claim under New Jersey law. See Frederico v. Home Depot, 507
F.3d 188, 200 (3d Cir. 2007). Her intentional-infliction-of-emotional-distress claim fails
because her allegations that BANA took over her mortgage and that a BANA
representative periodically visited her home do not involve conduct “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a civilized community.” Ingraham
v. Ortho-McNeil Pharm., 25 A.3d 1191, 1195 (N.J. Super. Ct. App. Div. 2011) (quoting
Buckley v. Trenton Saving Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988)). Moreover, as
the District Court explained, Dophin failed to plead any facts suggesting that BANA has
been unjustly enriched. See VRG Corp. v. GKN Realty Corp., 641 A.2d 519, 526 (N.J.
1994) (“To establish unjust enrichment, a plaintiff must show both that defendant
received a benefit and that retention of that benefit without payment would be unjust.”).
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Finally, Dophin failed to state a viable invasion-of-privacy claim. Invasion of
privacy involves “the intentional intrusion, ‘physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns’ that ‘would be highly offensive to
a reasonable person.’” G.D. v. Kenny, 15 A.3d 300, 319-20 (N.J. 2011) (quoting Bisbee
v. John C. Conover Agency, Inc., 452 A.2d 689, 691 (N.J. Super. Ct. App. Div. 1982)).
The periodic visits from a BANA employee to Dophin’s home do not represent a
sufficiently substantial intrusion to make out a claim. See Restatement (Second) of Torts
§ 652B cmt. d (1977); see also Villanova v. Innovative Investigations, Inc., 21 A.3d 650,
654 (N.J. Super. Ct. App. Div. 2011) (employing Restatement’s definition). Likewise,
Dophin’s vague allegations concerning BANA’s collection or foreclosure efforts do not
state a plausible claim. See Bisbee, 452 A.2d at 691-92; see also Lovgren v. Citizens
First Nat’l Bank of Princeton, 534 N.E.2d 987, 989 (Ill. 1989). Nor has Dophin
explained how BANA’s acquiring her mortgage implicated her right to privacy.1
Accordingly, we will affirm the District Court’s judgment.
1
Dophin also presents conclusory allegations that BANA has been able to limit her
employment opportunities because it provides banking services to her past employers.
These allegations do not suffice to state a claim. See Twombly, 550 U.S. at 556-57.
Likewise, insofar as Dophin has raised any additional claims, we agree with the District
Court that they lack merit. Finally, we are satisfied that amendment to the complaint
would be futile, and therefore conclude that the District Court did not err in dismissing
the complaint without providing Dophin another opportunity to amend. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
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