UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STEVEN J. DOERING,

Plaintiff, No. 14-12413

v. District Judge Patrick J. Duggan

Magistrate Judge R. Steven Whalen

JP MORGAN CHASE BANK, N.A.,

Defendant.

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OPINION AND ORDER

Before the Court is Plaintiff Steven J. Doering’s Motion for Leave to Amend

Complaint [Doc. #32]. For the following reasons, the motion will be DENIED.

 Despite the general rule of liberality with which leave to file amended complaints

is to be granted, see Fed.R.Civ.P. 15(a), the Sixth Circuit has held that when a proposed

amended complaint would not survive a motion to dismiss, the court may properly deny

the amendment. Neighborhood Development Corp. v. Advisory Council on Historic

Preservation, 632 F.2d 21, 23 (6 Cir. 1980); Thiokol Corporation v. Department of th

Treasury, 987 F.2d 376 (6 Cir. 1993). The Plaintiff’s proposed amended claims in this th

case fail as a matter of law, and permitting the amendment would therefore be futile.

The Plaintiff’s claims arise from a loan and mortgage contract. The claims for

intentional infliction of emotional distress (Count 1), negligent infliction of emotional

distress (Count II), negligence (Count III), and fraudulent misrepresentation (Count IV)

are all torts, and thus barred by the economic loss doctrine. “Under Michigan law, a party

is barred from recovering economic losses in tort, where those losses were suffered

because of a breach of duty assumed only by contract.” Kemp v. Resurgent Capital

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Services, 2013 WL 5707797, *9 (E.D.Mich. 2013), citing Neibarger v. Universal Coops,

439 Mich. 512, 525–26, 486 N.W.2d 612 (1992); Fultz v. Union Commerce–Assoc., 470

Mich. 460, 467, 683 N.W.2d 587 (2004).1

In addition, as a substantive matter, the proposed amended complaint does not set

forth a plausible claim of either intentional or negligent infliction of emotional distress.

To establish intentional infliction of emotional distress, a plaintiff must show “(1)

extreme and outrageous conduct, (2) intent or recklessness (or negligence), (3) causation,

and (4) severe emotional distress.” Graham v. Ford, 237 Mich.App. 670, 674, 604

N.W.2d 713 (1999); Roberts v. Auto-Owners Insurance Co., 422 Mich. 594, 374 N.W.2d

905 (1985). Liability under this theory requires that the conduct complained of “has been

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.” Graham, 237 Mich.App. at 674. Under this standard, it is not sufficient to

show that the defendant acted tortiously, intentionally, or even criminally. Id. The test

has been described as whether “the recitation of the facts to an average member of the

community would arouse his resentment against the actor, and lead him to exclaim,

‘Outrageous!’” Roberts, 422 Mich. at 603. 

The Plaintiff does not dispute that he defaulted on his mortgage. As a result, Chase

 . In Huron Tool and Engineering Company v. Precision Consulting Services, 1

Inc., 209 Mich.App. 365, 532 N.W.2d 541 (1995), the court held that a claim of fraud in

the inducement could survive independently of breach of contract claims, so long as the

fraud claim was extraneous to the contractual dispute. Id., 209 Mich.App. at 372-75. The

court explained that “a claim of fraud in the inducement, by definition, redresses

misrepresentations that induce the buyer to enter into a contract but that do not in

themselves constitute contract or warranty terms subsequently breached by the seller.” Id.

In this case, Plaintiff’s claim of fraudulent misrepresentation cannot plausibly be

construed as a claim of fraud in the inducement, or fraud that is extrinsic to the

contractual dispute. 

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initiated foreclosure proceedings, as it was permitted to do. Chase’s alleged failure to

provide information or documentation to the Plaintiff does not rise to level of outrageous

conduct, or conduct that would lead to severe emotional distress.

In Hesse v. Ashland Oil, Inc., 466 Mich. 21, 34, 642 N.W.2d 330 (2002), the Court

set for the elements of negligent infliction of emotional distress as follows:

“(1) serious injury threatened or inflicted on a person, not the plaintiff, of a

nature to cause severe mental disturbance to the plaintiff, (2) shock by the

plaintiff from witnessing the event that results in the plaintiff's actual

physical harm, (3) close relationship between the plaintiff and the injured

person (parent, child, husband, or wife), and (4) presence of the plaintiff at

the location of the accident at the time the accident occurred or, if not

presence, at least shock ‘fairly contemporaneous’ with the accident.” 

“Michigan has refused ‘to apply the tort of negligent infliction of emotional

distress beyond the situation where a plaintiff witnesses negligent injury to a third person

and suffers mental disturbance as a result.’” Samberg v. Detroit Water & Sewer Co., 2015

WL 2084682, *3 (E.D.Mich. 2015) (quoting Duran v. The Detroit News, 200 Mich.App.

622, 629, 504 N.W.2d 715 (1993)). Again, Plaintiff’s claims arise from his own default

on a mortgage and subsequent foreclosure proceedings. This is not a case where he

suffered emotional harm after witnessing a negligent injury to a third person.

Plaintiff’s proposed claims of negligent misrepresentation and breach of contract

also fail as a matter of law. These claims are based on Chase’s alleged unfulfilled promise

to provide “the costs breakdown and proof of the listed service documents,” Proposed

Amended Complaint, Doc. #32, ¶ 62, and Chase’s promise “to reinstate Plaintiff’s loan

upon payment of back installments and then refusing to provide accurate amount of

arrearage and the institution of foreclosure proceedings.” Id ¶ 67. A claim of negligent

misrepresentation requires a showing of a duty of care. Chase’s duties to Plaintiff were

contained in the mortgage, under which it was entitled to pursue foreclosure upon

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Plaintiff’s default. There was no duty within the mortgage contract that would entitle the

Plaintiff to “the costs breakdown and proof of the listed services documents.” As to the

claimed breach of contract, any oral promises that are not incorporated into the mortgage

contract with a financial institution–and these were not–are barred by the statute of

frauds. Crown Tech Park v. D&N Band, FSB, 242 Mich.App. 538, 550, 619 N.W.2d 66

(2000).

Because Plaintiff’s claims would not survive a motion to dismiss, his motion for

leave to amend his complaint [Doc. #32] is DENIED.

IT IS SO ORDERED.

s/ R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: May 26, 2015

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record

on May 26, 2015, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

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