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.

 /

REPORT AND RECOMMENDATION

Plaintiff Steven J. Doering filed a pro se civil complaint in the Macomb County

Circuit Court. On June 20, 2014, Defendant JP Morgan Chase Bank, N.A. (“Chase”)

removed the case to this Court based on diversity jurisdiction. Before the Court is

Defendant’s motion to dismiss [Doc. #17], which has been referred for a Report and

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below,

I recommend that the motion be GRANTED and that the complaint be DISMISSED

WITH PREJUDICE.

I. FACTS

This is a mortgage foreclosure case. In 2002, the Plaintiff obtained a loan of

$84,500.00 from Washington Mutual Bank, secured by a mortgage on real property in

Macomb County, Michigan. On February 4, 2013, Washington Mutual assigned the

mortgage to Defendant Chase. Chase initiated foreclosure proceedings, but no foreclosure

sale has taken place.

On July 8, 2014, Plaintiff filed a Chapter 13 bankruptcy petition, and on January

28, 2015, the Bankruptcy Court entered an order lifting the automatic stay so that Chase

-1-

2:14-cv-12413-PJD-RSW Doc # 36 Filed 05/26/15 Pg 1 of 8 Pg ID 531
could pursue dismissal of the present action.

Plaintiff’s original complaint is extremely terse. In unadorned terms, it alleges

wrongful charges, failure to prove costs, and wrongful foreclosure. On May 5, 2015,

Plaintiff filed a motion to amend his complaint to add the following six counts: (1)

intentional infliction of emotional distress, (2) negligent infliction of emotional distress,

(3) negligence, (4) fraudulent misrepresentation, (5) negligent misrepresentation, and (6)

breach of contract.

By separate order, I am denying Plaintiff’s motion to amend. However, insofar as

he has submitted the proposed amended complaint as an exhibit in response to Chase’s

motion to dismiss, and in deference to the fact that Plaintiff is proceeding without

counsel, I will consider the amended allegations in making my recommendation.

II. STANDARD OF REVIEW

Fed.R.Civ.P. 12(b)(6) provides for dismissal of a complaint “for failure of the

pleading to state a claim upon which relief can be granted.” Rule 12(b) also provides that

if, on consideration of a motion under paragraph (6), “matters outside the pleadings are

presented to and not excluded by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in Rule 56 (summary judgment).” In

assessing a Rule 12(b)(6) motion, the court accepts the plaintiff’s factual allegations as

true, and asks whether, as a matter of law, the plaintiff is entitled to legal relief. Rippy v.

Hattaway, 270 F.3d 416, 419 (6 Cir. 2001). th

The United States Supreme Court has modified the standard for determining

whether a complaint is subject to dismissal under Fed.R.Civ.P. 12(b)(6). In Bell Atlantic

Corp. v. Twombley, 550 U.S 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Court, 

construing the requirements of Fed.R.Civ.P. 8(a)(2), held that although a complaint need

-2-

2:14-cv-12413-PJD-RSW Doc # 36 Filed 05/26/15 Pg 2 of 8 Pg ID 532
not contain detailed factual allegations, its “[f]actual allegations must be enough to raise a

right to relief above the speculative level...on the assumption that all the allegations in the

complaint are true.” Id., 127 S.Ct. at 1964-65 (internal citations and quotation marks

omitted). Further, “a plaintiff’s obligation to provide the grounds of his entitlement to

relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Id. (Internal citations and quotation marks

omitted). See also Association of Cleveland Fire Fighters v. City of Cleveland, Ohio 502

F.3d 545, 548 (6 Cir. 2007). Stated differently, a complaint must “state a claim to relief th

that is plausible on its face.” Twombley, at 1974.

In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the

Court explained and expanded on what it termed the “two-pronged approach” of

Twombley. First, it must be determined whether a complaint contains factual allegations,

as opposed to legal conclusions. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id., 129 S.Ct. at 1949, citing

Twombley, 550 U.S. at 555. Second, the facts that are pled must show a “plausible” claim

for relief, which the Court described as follows:

“Determining whether a complaint states a plausible claim for relief will, as

the Court of Appeals observed, be a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense. But

where the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged–but it has not

‘shown[n]”–‘that the pleader is entitled to relief.’” 129 S.Ct. at 1950

(Internal citations omitted).

III. DISCUSSION

Fed.R.Civ.P 8(a)(2) requires that a complaint contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” The complaint must “contain

either direct or inferential allegations respecting all the material elements to sustain a

-3-

2:14-cv-12413-PJD-RSW Doc # 36 Filed 05/26/15 Pg 3 of 8 Pg ID 533
recovery under some viable legal theory,” and bare assertions of legal conclusions are

insufficient. Scheid v. Fanny farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988).

See also Iqbal, 556 U.S. at 678–79. The Sixth Circuit has recognized that such pleading

requirements are mandatory, even for pro se litigants. Wells v. Brown, 891 F.2d 591, 594

(6th Cir.1989). A court “should not have to guess at the nature of the claim asserted.” Id.

On its face, the original complaint in this case fails to meet the pleading standards

of Rule 8(a) and Iqbal. It alleges a wrongful foreclosure, but is devoid of facts to show

exactly how the foreclosure was improper. Likewise, it alleges that the Plaintiff was

assessed improper costs, but does not describe those costs. The complaint does not set

forth any coherent legal basis for relief.

While the proposed amended complaint sets forth more facts and makes specific

legal claims, the Plaintiff does not fare any better if the Court considers those allegations. 

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

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 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

-4-

2:14-cv-12413-PJD-RSW Doc # 36 Filed 05/26/15 Pg 4 of 8 Pg ID 534
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

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

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. 

-5-

2:14-cv-12413-PJD-RSW Doc # 36 Filed 05/26/15 Pg 5 of 8 Pg ID 535
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

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).

-6-

2:14-cv-12413-PJD-RSW Doc # 36 Filed 05/26/15 Pg 6 of 8 Pg ID 536
IV. CONCLUSION

For these reasons, I recommend that Defendant’s motion to dismiss [Doc. #17] be

GRANTED and that the complaint be DISMISSED WITH PREJUDICE.

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D.

Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);

Howard v. Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 th

F.2d 947 (6 Cir. 1981). Filing of objections which raise some issues but fail to raise th

others with specificity will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. th

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. th

1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served

upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed

objections, the opposing party may file a response. The response shall be not more than

twenty (20) pages in length unless by motion and order such page limit is extended by the

court. The response shall address specifically, and in the same order raised, each issue

contained within the objections. 

s/ R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: May 26, 2015

-7-

2:14-cv-12413-PJD-RSW Doc # 36 Filed 05/26/15 Pg 7 of 8 Pg ID 537
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

-8-

2:14-cv-12413-PJD-RSW Doc # 36 Filed 05/26/15 Pg 8 of 8 Pg ID 538