The Dismissive Dismissal
October 31, 2016 § 2 Comments
In the case of Crater v. BNY Mellon, handed down October 18, 2016, the trial court dismissed the plaintiff’s complaint for lack of standing and refused her motion to amend.
Bank of New York (BNY) Mellon had begin foreclosure on the deed of trust (DT) on Brenda Crater’s home. She filed suit alleging that her original mortgage company, HLC, had improperly assigned its interest in the DT to BNY Mellon.
Mellon moved to dismiss for failure to state a claim (R 12(b)(6)) on the basis that Crater had no standing to dispute the assignment.
Crater then filed a motion to amend to assert various new claims, including fraud.
The chancellor, six days later, summarily dismissed Crater’s complaint.
Crater moved to amend or alter the dismissal order claiming that the court improperly failed to grant her motion to amend. The chancellor overruled the motion and refused to grant leave to amend, finding that the new claims had no legal basis and were barred by the SOL. Brenda appealed.
In its opinion, by Judge Greenlee, the court rejected Brenda’s argument that the trial judge erroneously dismissed her complaint:
¶10. Crater asserts that the trial court erred by not ruling on her motion to amend her
complaint prior to granting Mellon’s motion to dismiss. Mississippi Rule of Civil Procedure 15(a) states that when a Mississippi Rule of Civil Procedure 12(b)(6) motion is before the court, leave to amend shall be freely given when justice so requires. M.R.C.P. 15(a). If the facts and circumstances relied upon by a plaintiff may be a proper subject of relief, she should be given the opportunity to test her claim on the merits. Webb [v. Braswell, 930 So.2d ]387] at 393 (¶9) (citing Moeller v. Am. Guar. & Liab. Ins., 812 So. 2d 953, 962 (¶28) (Miss. 2002)). If it is apparent that the amendment would cause undue prejudice to the opposing party because the amendment would be futile, then leave should not be freely given. Id.
The court went on to find that, since Crater’s new claims were against a non-party who had not been served with process, and the SOL barred the vague claims, and since they invoked a statutory right that did not exist, amendment would be futile, and should not have been granted. The chancellor, therefore, was not in error.
This case is a reminder that, if you get dismissed per R12(b)(6), you do not have an automatic right to a do-over on your pleadings. You must have a viable, judiciable claim.
The amendment provision of 12(b)(6) is designed to prevent an otherwise viable suit from being dismissed due to flawed pleading. For instance, if you file a child custody modification case and do not plead that “there has been a material change in circumstances that is having or has had an adverse effect on the minor child,” or words to that effect, the complaint fails to state a claim. See, McMurry v. Sadler, 846 So.2d 240, 244 (Miss. App. 2002). If the other side tests the sufficiency of your pleading that omitted those words, and the judge sustains their motion, you should be granted leave to amend to add the appropriate language.
If you get dinged by a 12(b)(6) motion, be sure you make an immediate motion for leave to amend. The rule specifically states that, ” … if the motion is granted, leave to amend shall be granted in accordance with Rule 15(a).” The rule does not say that the judge shall automatically grant it without your motion to do so, although I see no reason why the judge can not; however, if the judge does not do it sua sponte, and you stood silent, you should assume that you don’t have leave to amend, and your suit may go bye-bye with the running of time.
A post on the critical importance of pleading both material change and adverse effect in custody-modification cases is at this link.
The Better Chancery Practice Blog 
This seems like an emphasis of form over substance. I mean, if I don’t recite the words “material change in circumstances that has had an adverse effect on the child,” but I allege facts that, if true, would constitute such a thing, that seems to satisfy Rule 8.
At least, it would under the FRCP. Demanding that I incant the magic words seems like a throwback to writ pleading.
I agree completely. It’s contrary to the notion of notice pleading. But if you don’t do it that way you are jeopardizing your case.