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THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
BEVERLY D. ROBINSON,
LITTON LOAN SERVICING, LP
D/B/A MGTLQ INVESTORS, L.P,
) No. 10-2459
Plaintiff Beverly D. Robinson (“Robinson”) brings this
action against Defendant Litton Loan Servicing, LP d/b/a MGTLQ
Investors, L.P. (“Litton”) for breach of contract.1 (Compl., ECF
No. 1.) On May 26, 2011, Litton filed a Motion to Dismiss.
(Def.?s Mot. to Dismiss, or in the Alternative, for Summ. J.,
ECF No. 15.) Plaintiff Beverly D. Robinson (“Robinson”)
responded stating, that “although she cannot consent to the
motion, she cannot legally, nor in good faith, oppose it.”
(Pl.?s Resp. to Def.?s Mot. to Dismiss (ECF No. 19.) Litton has
moved for dismissal of Robinson?s complaint or, in the
1 Robinson initially contended that Litton did business as “MTGLQ Investors,
L.P.”. (Compl. ¶ 5.) Robinson moved to add MGTLQ Investors, L.P. as a
separate defendant, and Litton opposed the motion. (Mot. for Leave to Amend
Compl., ECF No. 12.; Def.?s Resp. to Pl.?s Mot. for Leave to Amend Compl.,
ECF No. 13.) The Court denied Robinson?s motion on May 16, 2011. (Order
Denying Pl.?s Mot. for Leave to Amend Compl., ECF No. 14.)
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alternative, for summary judgment. For the following reasons,
Litton?s Motion to Dismiss is GRANTED.
On July 9, 2009, Litton entered into a contract to sell
Robinson a parcel of real estate described as 21780 Highway 3,
Tunica, Tunica County, Mississippi, 38676 (the “Property”).
(Compl. ¶ 7.) Robinson tendered $1,500 to Litton on execution
of the contract towards the purchase of the Property. (Id. ¶ 9.)
Pursuant to the contract, Robinson had the Property surveyed, at
which time she was discovered there was an encroachment issue.3
(Id. ¶ 11.) In October of 2009, Litton informed Robinson that
it would be unable to convey the Property because the property
line issue had not been resolved. (Id. ¶ 13.) Robinson alleges
that Litton breached the contract when it was “unwilling and/or
unable to convey the [P]roperty.” (Id. ¶ 14.) Robinson seeks
damages for: 1) costs incurred in preparation for closing; 2)
loss of benefit of the bargain; 3) loss of a favorable mortgage
interest rate; and 4) repairs made to the property in
anticipation of taking possession.
On July 18, 2009, Robinson and Litton executed an addendum
which states the following:
2 The following facts are taken from Robinson?s Complaint and from her
Response to the Defendant?s First Requests for Admission. (Compl, ECF No.
1; Pl.?s Resp. to Def.?s First Req. for Admis., ECF No. 15-6 (“Pl.?s
3 Neither party provides any information about the extent or nature of the
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Buyer [Robinson], with the intention of binding Buyer,
Buyer?s heirs, executors, administrators, and assigns,
releases, forever discharges and holds harmless
[Litton] as agent for Seller, Seller, its respective
officers, employees, agents, successors, and assigns
of and from any and all manner of actions, causes of
actions, suits, debts, dues, sums of money,
trespasses, damages, judgments, executions, claims,
and demands whatsoever in law or in equity against
Litton Loan Servicing . . . which [Robinson] as
“Buyer” ever had, now has, or may have . . . by any
reason of any matter, cause, or thing whatsoever
arising from the subject matter of this release [the
(Addendum to Contract for Sale 1, ECF. No. 15-4
(“Addendum”).) Robinson concedes that she signed the
Addendum. (Pl.?s Resp. ¶ 6-9.) Robinson also concedes
that it was a valid and binding contract. (Id. ¶ 9.)
II. Jurisdiction and Choice of Law
Robinson is a Tennessee resident. (Compl. ¶ 4.) Litton is
a corporation incorporated under the laws of Delaware and
maintains its principal offices in Texas. (Ans. of Litton Loan
Servicing, LP d/b/a MGTLQ Investors, L.P., ECF No. 4 (“Ans.”).)
The amount in controversy exceeds $75,000. Thus, the Court has
diversity jurisdiction under 28 U.S.C. § 1332.
The substantive law governing a diversity case is state
rather than federal law. Erie R.R. Co. v. Tompkins, 304 U.S. 64
(1938). A federal court must apply the “choice of law” rules of
the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496 (1941); accord Menuskin v. Williams, 145
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F.3d 755, 761 (6th Cir. 1998) (citations omitted); Girgis v.
Countrywide Home Loans, Inc., 733 F. Supp. 2d 835, 850-51 (N.D.
Ohio 2010) (citations omitted).
For contract claims, Tennessee follows the rule of lex loci
contractus, which provides that a contract is presumed to be
governed by the law of the jurisdiction in which it was
executed, absent a contrary intent. Vantage Tech., LLC v.
Cross, 17 S.W.3d 637, 650 (Tenn. Ct. App. 1999) (citing Ohio
Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d 465, 467
(Tenn. 1973)); see also Southeast Tex. Inns, Inc. v. Prime
Hospitality Corp., 420 F.3d 666, 672 n.8 (6th Cir. 2006)
(observing that “Tennessee adheres to the rule of lex loci
contractus.”). “If the parties manifest an intent to instead
apply the laws of another jurisdiction, then that intent will be
honored provided certain requirements are met”: (1) the choice
of law provision must be executed in good faith, (2) the chosen
jurisdiction must bear a material connection to the transaction,
(3) the basis for the choice of law must be reasonable, and (4)
the choice of “another jurisdiction?s law must not be „contrary
to a fundamental policy of a state having a materially greater
interest and whose law would otherwise govern.?” Id. (citations
The contract was entered into in the state of Mississippi,
concerned property located in Mississippi, and was to be
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performed within Mississippi. (Ans. 1.) The contract specifies
that the Mississippi Code applies to various of its provisions.
(Contract for the Sale and Purchase of Real Estate ¶ 19 & 21,
ECF No. 15-2 (the “Contract”).) Mississippi law governs
Robinson?s claims. See Vantage Tech., 17 S.W.3d at 650.4
III. Standard of Review
In addressing a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), the Court must
construe the complaint in the light most favorable to the
plaintiff and accept all well-pled factual allegations as true.
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523,
527 (6th Cir. 2007). A plaintiff can support a claim “by
showing any set of facts consistent with the allegations in the
complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563
(2007). This standard requires more than bare assertions of
legal conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d
356, 361 (6th Cir. 2001). “[A] formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S.
at 555. Any claim for relief must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam). “Specific facts are not necessary; the statement need
4 Despite pleading in their answer that this contract is governed by
Mississippi law (Ans. ¶ 3), Litton cites Tennessee law to support its Motion
to Dismiss. (Def.?s Mem. Of Law in Support of Its Mot. to Dismiss, or in the
Alternative, for Summ. J. 5-7, ECF No. 15-7.)
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only „give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.?” Id. (citing Twombly, 550
U.S. at 555). Nonetheless, a complaint must contain sufficient
facts “to „state a claim to relief that is plausible on its
face.?” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 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.”
Id. (citing Twombly, 550 U.S. at 556). “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 1949 (citation omitted). A
plaintiff with no facts and “armed with nothing more than
conclusions” cannot “unlock the doors of discovery.” Id. at
As a general rule, matters outside the outside the
pleadings may not be considered when a court rules on a Rule
12(b)(6) motion to dismiss. J.P. Silverton Indus. L.P. v. Sohm,
243 Fed. App?x 82, 86-87 (6th Cir. 2007). However, “[d]ocuments
attached to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff?s complaint
and are central to the plaintiff?s claim.” Jackson v. City of
Columbus, 194 F.3d 737, 745 (6th Cir. 1999); see also Borman v.
Great Atl. & Pac. Tea Co., Inc., 64 F. App?x 524, 528 n. 3 (6th
Cir. 2003)(quoting Weiner v. Klais & Co., Inc., 108 F.3d 86, 89
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(6th Cir. 1997)) (“Documents that a defendant attaches to a
motion to dismiss are considered part of the pleadings if they
are referred to in the plaintiff?s complaint and are central to
her claim.”); Malaney v. AT&T Umbrella Benefit Plan No. 1, No.
2:10-cv-401, 2010 U.S. Dist. LEXIS 130029, at *6 (S.D. Ohio,
Dec. 9, 2010) (“The court may also consider a document . . .
which is referred to in the complaint and is central to the
Robinson?s Complaint arises from the contract that she
signed with Litton. (Compl. ¶ 7.) The Sixth Circuit has
decided that complaints alleging violations of insurance
policies and pension plans incorporate those documents. See
Greenberg v. Life Ins. Co., 177 F.3d 507, 514 (6th Cir. 1999)
(incorporating a insurance policy submitted by the defendant
into the pleadings); Weiner, 108 F.3d at 89 (incorporating
pension plan documents that defendant attached to motion into
the pleadings because they were central to plaintiff?s claim for
benefits). District Courts have considered letters offering
employment, home loan modification offers, arbitration clauses,
and employment contracts to be central to a plaintiff?s
complaint. See Orton v. Johnny?s Lunch Franchise, LLC, No. 10-
11013, 2010 U.S. Dist. LEXIS 72672, at *11 n.7 (E.D. Mich. July
20, 2010); Bazzy v. IndyMac Mortg. Servs., 2010 U.S. Dist. LEXIS
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15703, at *7 (E.D. Mich. Feb. 23, 2010); High v. Capital Senior
Living Props. 2–Heatherwood, Inc., 594 F. Supp.2d 789, 796-97
(E.D. Mich. 2008); Campbell v. Prometheus Labs, Inc., No. 3:07-
0058, 2008 U.S. Dist. LEXIS 6359, at *2 (M.D. Tenn. Jan. 28,
2008). Litton submits the Addendum to the Court, and it is part
of the contract that forms the basis of Robinson?s complaint.
Therefore, it is incorporated into the pleadings.
When interpreting a contract, a Court must construe it “in
accordance with the plain language” expressed by the parties.
Lewis v. Allstate Ins. Co., 730 So. 2d 65, 70 (Miss. 1998).
Unless a contract is ambiguous, interpreting it is a question of
law. A&F Props., LLC v. Madison Cnty. Board of Supervisors, 933
So. 2d 296, 301 (Miss. 2006). Absent ambiguity, “legal purpose
or intent should first be sought in an objective reading of the
words employed in the contract to the exclusion of parol or
extrinsic evidence.” A&F Props., LLC, 933 So. 2d at 301. A
court reviewing a contract should first apply “the „four
corners? test . . . wherein the reviewing court looks to the
language that the parties used in expressing their agreement.”
Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So. 2d
748, 753 (Miss. 2003).
Mississippi allows parties to sign releases and waive
their right to sue. “Parties are usually free to contract away
their rights, even those which are unknown and not
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contemplated,” Ill. Cen. R.R. v. Acuff, 950 So. 2d 947, 960
(Miss. 2006). Nevertheless, “[c]lauses limiting liability are
given rigid scrutiny by the courts, and will not be enforced
unless the limitation is fairly and honestly negotiated and
understandingly entered into.” Turnbough v. Ladner, 754 So. 2d
467, 469 (Miss. 1998) (quoting Farragut v. Massey, 612 So. 2d
325, 330 (Miss. 1992)); see also Quinn v. Miss. State Univ, 720
So. 2d 843, 851, (Miss. 1998) (upholding clauses that limit
liability only if they are “fairly and honestly negotiated and
understood by both parties.”).
Looking to the plain language of the Addendum, Robinson
expressly agreed to “forever discharge and hold harmless
[Litton] as agent for Seller . . . from any and all manner of
actions, causes of actions, suits,” and any other matter.
(Addendum.) Robinson admits that the Addendum is a valid and
binding document which she signed. (Pl.?s Responses to Def.?s
First Requests for Admis. ¶¶ 8-10, ECF No. 15-6 (“Admissions”).)
Her claim sounds in contract, not tort.
The facts of this breach-of-contract case differ from tort
cases where the courts of Mississippi have refused to uphold
releases. In Turnbough, for example, the plaintiff signed a
waiver of liability before beginning scuba diving classes and
sued the defendant after he was injured and diagnosed with
decompression illness. 754 So. 2d 468-69. The court held that,
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because the defendant?s safety procedures fell “woefully short
of minimally acceptable standards,” it was unreasonable to
believe Turnbough “intended to waive his right to recover from
[the defendant] for failing to follow even the most basic
industry safety standards.” Id. at 469. In Quinn, the
plaintiff sued when his coach swung a baseball bat at him and
accidentally hit him in the mouth. 720 So. 2d at 845. The
plaintiff?s parents had signed a contract providing that there
was an “inherent risk of physical injury” and releasing the
defendant “from any and all liability for personal injury.” Id.
The court concluded that there were two reasons the clause was
not applicable: 1) the release was ambiguous, and 2) “[a] party
can not use an anticipatory release to escape liability for
tortious acts.” Id. at 851; see also Farragut v. Massey, 612
So. 2d 325, 330 (Miss. 1992) (finding a liability release did
not cover property damage from drilling because a party may not
use a release “to escape liability for tortious acts.”).
These cases differ from the present situation. Robinson
does not contend that her contract was ambiguous or that her
complaint sounds in tort; she seeks damages for breach of
contract. She does not argue that she did not understand the
release or that it was not honestly negotiated. “When the
language of the . . . contract is clear, definite, explicit, . .
. and free from ambiguity throughout, the court will . . . give
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effect to each and all parts written.” Farragut, 612 So. 2d at
329 (quoting Sumter Lumber Co. v. Skipper, 184 So. 296, 298
When the plaintiff in Meeks v. Khumalo signed a release
promising not to “file or assert any suit, action or claim
against the [defendant] . . . for damages or injuries of any
kind whatsoever resulting [from]” the defendant?s medical
malpractice, the court dismissed the complaint and held it
“border[ed] on frivolous.” No. 1:07CV161-M-D, 2009 U.S. Dist.
LEXIS 25875, at *3-4 (N.D. Miss. March 25, 2009). In Peters v.
State Farm Mut. Auto. Ins. Co., the Northern District of
Mississippi upheld a release “from any and all claims, demands,
damages, actions, causes of actions or suits of any kind or
nature whatsoever” because the language was unambiguous. No.
1:05CV85-D-D, 2006 U.S. Dist. LEXIS 365, at *8-9 (N.D. Miss.
Jan. 17, 2006). Courts routinely uphold such language as
unambiguous. See, e.g., Puro Sys. V. Bevilacqua, No. 10-7-557-
CIV-COHN/SELTZER, 2010 U.S. Dist. LEXIS 84357, at *7-8 (S.D.
Fla. Aug. 18, 2010) (upholding a termination agreement as
unambiguous when it released one party from “any and all manner
of actions, causes of actions, or suits); Transportation Ins.
Co. v. Spring-Del Assoc, 159 F. Supp. 2d 836, 838 (E.D. Pa.
2001) (same); Hughes v. Carmody & Torrance, Case No.
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9700127811S, 1998 Conn. Super. LEXIS, at *10-12 (Conn. Super.
Ct. Nov. 19, 1998) (same).
Robinson has offered no evidence that the Addendum is
ambiguous or that it was the product of dishonest negotiations.
She has failed to address the fact that she signed a valid
waiver. Even “constru[ing] the complaint in the light most
favorable to the plaintiff,” she has not pled a valid claim.
Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (quoting
League of Latin American Citizens, 500 F.3d at 527). The Court
is not required “to ignore undisputed factual representations of
the defendant which are consistent with the representations of
the plaintiff.” Bridgeport Music, Inc. v. Still N the Water
Publ?g, 327 F.3d 472, 477 (6th Cir. 2003). Because Robinson has
admitted that the Addendum was valid and binding, Litton?s
Motion to Dismiss must be granted.
For the foregoing reasons, Litton?s Motion to Dismiss is
GRANTED and Robinson?s Complaint is DISMISSED.
So ordered this 28th day of October, 2011.
/s Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE