Jaysen McCleary v. Reliastar Life Insurance Co.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-3085
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Horace Dwayne Allen, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Bank of America Corporation; *
Merrill Lynch Bank USA; PHH * [UNPUBLISHED]
Mortgage Corporation; Wells Fargo *
& Company; Bank of America, *
National Association, *
*
Appellees. *
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Submitted: May 22, 2012
Filed: June 5, 2012
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Before WOLLMAN, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Horace Dwayne Allen filed this civil action against the institutions purportedly
involved in handling his mortgage while he was suing the builder of his Minnesota
residence, which had been destroyed by mold. Defendants removed the action to
federal court based on diversity jurisdiction. After multiple hearings, the district

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court denied Allen’s motion for leave to amend his complaint and granted1
defendants’ motion to dismiss the action. Allen appeals.
Following careful review, we conclude that the district court did not abuse its
discretion by denying the motion to amend as futile, see In re Medtronic, Inc., Sprint
Fidelis Leads Prods. Liab. Litig., 623 F.3d 1200, 1208 (8th Cir. 2010) (denial of leave
to amend is reviewed for abuse of discretion, but legal conclusions underlying
determination of futility are reviewed de novo), because the conclusory assertions in
Allen’s proposed amended complaint did not state a claim of fraud or intentional
infliction of emotional distress under Minnesota law, see Trooien v. Mansour, 608
F.3d 1020, 1028 (8th Cir. 2010) (fraud); Langeslag v. KYMN, Inc., 664 N.W.2d 860,
864 (Minn. 2003) (emotional distress), nor did they state a claim of harassment.
Accordingly, dismissal with prejudice was proper. See Pet Quarters, Inc. v.
Depository Trust & Clearing Corp., 559 F.3d 772, 782 (8th Cir. 2009) (Fed. R. Civ.
P. 12(b)(6) dismissal with prejudice is not abuse of discretion when amendment
would be futile). We also observe that a Federal Rule of Civil Procedure 60(b)
motion cannot be filed in the first instance in this court.
The judgment is affirmed. See 8th Cir. R. 47B.
______________________________
The Honorable Michael J. Davis, Chief Judge, United States District Court for1
the District of Minnesota, adopting the report and recommendations of the Honorable
Janie S. Mayeron, United States Magistrate Judge for the District of Minnesota.
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