United States District Court, D. New Hampshire
Christine Johnson, pro se
Johnson, pro se
J. Pappas, Esq.
P. Sherman, Esq.
DICLERICO, JR. UNITED STATES DISTRICT JUDGE
and Christine Johnson, proceeding pro se, brought suit in
state court against Joan Shields and Bank of America, N.A.
after Bank of America attempted to repossess a sailboat that
the Johnsons bought with Shields. The purchase was financed
through a loan from Bank of America. The Johnsons brought
claims of misrepresentation and breach of contract against
Shields and sought an injunction against Bank of America to
prevent repossession of the boat. Bank of America defaulted.
Shields filed an answer and counterclaim.
April 26, 2016, the state court granted the Johnsons a
ten-day injunction against Bank of America to prevent
repossession of the boat. The court held a hearing on the
injunction on May 5, 2016, and the Johnsons, Shields, and
Bank of America signed an agreement to address certain issues
in the case. The court approved the agreement and set a
status conference for July 5, 2016.
the agreement, BOA was required to identify the arrearages on
the mortgage within ten business days of May 5. The Johnsons
and Shields were ordered to split the amount equally and to
forward their shares to counsel for BOA within ten business
days after receiving notice of the amount owed. The boat was
to remain in storage at Rye Harbor. The Johnsons and Shields
were ordered to list the boat for sale within ten business
days of May 5. The Johnsons and Shields were also ordered to
share all expenses incurred for the boat. Based on that
agreement, Bank of America’s motion to set aside
default and vacate the ex parte injunction was granted.
America removed the case to this court on June 2, 2016, and
moves to dismiss the claim seeking an injunction on the
ground that the Johnsons have failed to allege a plausible
basis for enjoining the Bank from repossessing the boat.
Neither the Johnsons nor Shields filed a response to the
motion to dismiss.
motion to dismiss for failure to state a claim is governed by
Federal Rule of Civil Procedure 12(b)(6). In
considering a motion under Rule 12(b)(6), the court assumes
the truth of the properly pleaded facts and takes all
reasonable inferences from those facts that support the
plaintiff’s claims. Mulero-Carrillo v.
Roman-Hernandez, 790 F.3d 99, 104 (1st Cir. 2015). Based
on the properly pleaded facts, the court determines whether
the plaintiff has stated “a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007).
Johnsons provide few facts to support the claims in the
complaint. In support of the motion to dismiss, Bank of
America adds information from the loan and security agreement
on the boat and the mortgage. Those documents may be
considered for purposes of the motion to dismiss because the
complaint, along with the Johnsons’ motion for
injunctive relief in state court, references financing of the
boat through Bank of America. See Freeman v. Town of
Hudson, 714 F.3d 29, 36 (1st Cir. 2013).
Johnsons and Shields bought a thirty-eight foot sailboat in
March of 2007, with a $100, 000 loan through Bank of America.
The Johnsons expected Shields to pay part of the financing
costs and expenses for the boat. In the fall of 2015, Shields