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Case 2:10-cv-02459-SHM-dkv Document 20 Filed 10/28/11 Page 1 of 12 PageID 124









) 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.)


Case 2:10-cv-02459-SHM-dkv Document 20 Filed 10/28/11 Page 2 of 12 PageID 125

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

plaintiff?s claim.”).

IV. Analysis

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.