                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-2334
                        ___________________________

       Plymouth County, Iowa, Darin J. Raymond, by and through agent of

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

Merscorp, Inc.; Mortgage Electronic Registration Systems, Inc.; Bank of America
N.A.; BAC Home Loans Servicing, LP; CitiMortgage, Inc.; EverHome Mortgage Company

                     lllllllllllllllllllll Defendants - Appellees

                    GMAC-Residential Funding Corporation

                            lllllllllllllllllllll Defendant

HSBC Bank USA, N.A.; JPMorgan Chase Bank; Chase Home Finance LLC; EMC
 Mortgage Corporation; SunTrust Mortgage, Inc.; Wells Fargo Bank, N.A.; Wells
Fargo Home Mortgage, Inc.; WMC Mortgage Corporation; John Doe, Defendants 1-100

                     lllllllllllllllllllll Defendants - Appellees

                        Corinthian Mortgage Corporation

                            lllllllllllllllllllll Defendant
                                    ____________

                    Appeal from United States District Court
                  for the Northern District of Iowa - Sioux City
                                 ____________
                           Submitted: September 8, 2014
                             Filed: December 19, 2014
                                  ____________

Before RILEY, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
                              ____________


SHEPHERD, Circuit Judge.

       Plymouth County, on its own behalf and on behalf of all similarly situated
counties in Iowa, brought suit in state court alleging that Appellees, various loan
originators and servicers (Lenders), deprived the County of revenue by using the
Mortgage Electronic Registration System (MERS) to avoid paying recording fees on
mortgage assignments. The Lenders removed the action to federal court and filed a
motion to dismiss, which the district court1 granted. Plymouth County appeals,
asserting that the district court erred in dismissing the complaint on the merits and in
denying its motion to alter or amend the judgment and for leave to file an amended
complaint. We affirm.

                                           I.

       Generally, under Iowa law, mortgages on real property and any subsequent
assignments are recorded with the county recorder in the county where the real
property is located. A fee is paid to the county when mortgages or assignments are
recorded. The introduction of MERS significantly altered the recording process by
establishing a national electronic registry to track mortgages and subsequent
assignments. MERS does not originate, assign, or service any mortgages, but instead
charges a fee when members record or transfer a mortgage on the registry. Upon

      1
      The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.

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initial recording, mortgages are recorded with the county recorder and MERS
becomes the mortgagee of record. With subsequent transfers, MERS remains the
mortgagee of record in the county property records, but tracks the transfers for
priority purposes on its registry. These transfers are not recorded with the county
recorder in the county where the real property is located. The Lenders in this suit are
alleged to be members of MERS who register and track changes on the mortgages
they maintain in the MERS database or shareholders of MERSCORP.

       Plymouth County initiated this class action in state court against the Lenders
alleging that the Lenders intentionally failed to record mortgage assignments in the
county recorder’s office and failed to pay the accompanying recording fees in
violation of Iowa law. The County brought claims for unjust enrichment and civil
conspiracy and sought declaratory judgment, injunctive relief, and to pierce the
corporate veil. After removing to federal court, the Lenders filed a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). The Lenders also challenged
Plymouth County’s standing to bring the suit.

       The district court granted the Lenders’ motion to dismiss, finding that a
determination of whether Iowa’s Recording Act imposed a mandatory recording
requirement resolved all of the claims. Although the County asserted that its
complaint did not allege a mandatory recording requirement, the district court found
this to be “blatantly contrary” to the allegations contained in the complaint. The
district court found that the Iowa Recording Act does not impose a duty to record
mortgages and assignments in the county where the property is located. Because the
district court determined that Iowa law did not impose a mandatory recording
requirement, the court dismissed all of the County’s claims on the basis that they
could not survive in the absence of mandatory recording.

      After the district court granted the motion to dismiss, Plymouth County filed
a motion to alter or amend the judgment and for leave to file an amended complaint.

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Plymouth County argued that reconsideration was necessary because its brief in
opposition to the motion to dismiss requested leave to amend the complaint, and the
district court made no ruling on this request. The district court acknowledged the
oversight and reconsidered the County’s request to amend the complaint. Finding
that allowing the County leave to amend the complaint would be futile because the
otherwise meritless claims could not be saved by amendment, the district court denied
the motion. This appeal followed.

                                             II.

       We first consider whether Plymouth County has standing to bring this suit.
The Lenders argue that Plymouth County lacks standing because it has suffered no
injury in fact from mortgagees’ use of MERS over the county recorder system. We
review a determination that a party has standing de novo. St. Paul Area Chamber of
Commerce v. Gaertner, 439 F.3d 481, 484 (8th Cir. 2006). A plaintiff has standing
when he suffers a concrete injury, or an “injury in fact.” Urban Contractors Alliance
of St. Louis v. Bi-State Dev. Agency, 531 F.2d 877, 881 (8th Cir. 1976) (internal
quotation marks omitted). “The test of constitutional standing has been variously
expressed as ‘real and immediate injury’ to the plaintiff, ‘a distinct and palpable
injury to himself,’ or ‘injury in fact’. . . . [I]t is fundamental that the plaintiff himself
must have suffered the injury he seeks to redress.” Id. (citations omitted).

       The injury Plymouth County has identified is sufficient to support standing.
The County alleged that the use of MERS to bypass recordation with the county
recorder has deprived the County of fees associated with recordation and interfered
with the County’s duty as the recorder of property records. We believe this is a
sufficient injury in fact to allow the County to maintain an action against the Lenders.
Further, other courts considering the standing of counties bringing similar claims
have determined that the parties had standing. See Christian Cnty. Clerk v. Mortg.
Elec. Registration Sys., Inc., 515 F. App’x. 451, 454 (6th Cir. 2013) (finding county

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had standing to bring suit against MERS in case interpreting Kentucky law); Fuller
v. Mortg. Elec. Registration Sys., Inc., 888 F.Supp. 2d 1257, 1269-70 (M.D. Fla.
2012) (“Plaintiff has alleged an injury in fact–that the MERS recording system both
usurps his lawful authority to maintain public land records and reduces the amount
of revenue his office receives. In addition, Plaintiff alleges that this ‘non-public
recording’ interferes with the integrity of the public records by misstating that MERS
is the true mortgage holder and rendering the public unable to identify who has the
true mortgage interest in the property. With these allegations, Plaintiff has satisfied
Article III’s standing requirements.”). Because Plymouth County’s loss of fees and
the interference with the recording system are sufficient injuries, we conclude that
Plymouth County has standing to pursue these claims.

                                          III.

       We next consider whether the district court erred in dismissing Plymouth
County’s unjust enrichment and civil conspiracy claims and in denying its requests
to pierce the veil and for injunctive and declaratory relief. We review the dismissal
of a complaint for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) de novo. Botten v. Shorma, 440 F.3d 979, 980 (8th Cir. 2006). Plymouth
County first argues that the Lenders have been unjustly enriched because MERS
allows the Lenders to realize the benefits of the recording system by maintaining
priority without paying the accompanying fee to the County. Plymouth County
asserts that the district court’s dismissal of this claim was in error, claiming not that
there is a duty to record a mortgage under Iowa law, but instead that MERS enjoys
protection afforded by recording mortgage assignments at the expense of the County.

       Our own court has recently held that when state law imposes no duty to record
a mortgage or subsequent assignment, a county cannot successfully state a claim for
unjust enrichment. See Brown v. Mortg. Elec. Registration Sys., Inc., 738 F.3d 926,
934-35 (8th Cir. 2013) (“Because Arkansas law does not impose a duty on assignees

                                          -5-
of real estate mortgages to record those assignments, Brown’s state law unjust
enrichment and ADTPA claims do not state a claim.”). Other courts considering the
issue have also reached the same conclusion. See, e.g., Macon Cnty., Ill. v.
MERSCORP, Inc., 742 F.3d 711, 714 (7th Cir. 2014) (“[Defendants] are not deriving
any benefit from the County’s method, the recording system, beyond the recording
of the mortgage assignments to MERSCORP–for which MERSCORP pays the
County’s fee. Rather, the defendants are bypassing the County’s recording system,
as they are entitled to do because there is no requirement that either the initial
granting of a mortgage or its assignment be recorded, let alone that the assignment
of a promissory note be recorded.”).

       The district court determined that Iowa law imposes no duty to record
mortgages or subsequent assignments, and Plymouth County concedes this point. See
Shoemaker v. Ragland, 211 N.W. 564, 566 (Iowa 1926) (“It is true we have no statute
which, in express terms, requires the recording of assignments of mortgages either of
real or personal property . . . .”); Shoemaker v. Minkler, 211 N.W. 563, 564 (Iowa
1926) (“There is no requirement of statute that mortgage assignments be placed of
record . . . .”). Without a duty to record mortgage assignments under Iowa law,
Plymouth County cannot successfully state a claim for unjust enrichment. The
Lenders have withheld no money which in good conscience belongs to the County
because Iowa law does not require that all mortgagees record their instruments with
the county recorder. See In re Stratman’s Estate, 1 N.W.2d 636, 642 (Iowa 1942)
(explaining that to prevail on an unjust enrichment claim a plaintiff must show that
the “defendant has received money which in equity and good conscience belongs to
plaintiff”). A mortgagee’s decision to record a mortgage assignment with MERS and
pay it the corresponding fee does not result in MERS obtaining payment of money
which belongs to Plymouth County. Because Iowa law does not impose a duty on
assignees to record assignments of real estate mortgages, Plymouth County’s unjust
enrichment claim fails to state a claim upon which relief may be granted.



                                         -6-
        Plymouth County’s remaining claims similarly fail in the absence of a
mandatory recording requirement. The civil conspiracy claim cannot survive without
mandatory recording because “[c]ivil conspiracy is not in itself actionable; rather it
is the acts causing injury undertaken in furtherance of the conspiracy [that] give rise
to the action.” Basic Chems., Inc. v. Benson, 251 N.W.2d 220, 233 (Iowa 1977).
There is no underlying unlawful conduct to support the claim that the Lenders
engaged in a concerted effort to commit unlawful acts. Plymouth County’s request
to pierce the veil fails because it is a remedy rather than a cause of action. See Tamko
Roofing Prods., Inc. v. Smith Eng’g Co., 450 F.3d 822, 826 n.2 (8th Cir. 2006). The
underlying claims fail because there is no duty to record a mortgage assignment under
Iowa law, providing no basis to seek this remedy. Likewise, Plymouth County’s
request for injunctive relief was properly denied on the basis that injunctive relief is
not appropriate when the underlying claims fail. See Patel v. U.S. Bureau of Prisons,
515 F.3d 807, 813 (8th Cir. 2008). We decline to consider Plymouth County’s
request for declaratory relief because it has abandoned this claim. See Appellant’s
Br. 27 n. 18 (The County “will not press its claim for declaratory relief as pled in its
initial Complaint on this appeal.”). In sum, because Plymouth County’s claims are
dependent upon a mandatory recording requirement, we affirm the district court’s
dismissal of the complaint on the merits.

                                          V.

      We finally consider whether the district court erred in denying Plymouth
County’s motion to amend or alter the judgment and for leave to amend the complaint
under Federal Rule of Civil Procedure 59(e). Generally, we review a district court’s
denial of a motion to amend a complaint for abuse of discretion. Ferguson v. Cape
Girardeau Cnty., 88 F.3d 647, 651 (8th Cir. 1996). But we conduct a de novo review
of the underlying legal conclusion as to whether the proposed amendment to the
complaint would be futile. U.S. ex rel Gaudineer & Comito, L.L.P. v. Iowa, 269 F.3d
932, 936 (8th Cir. 2001). Under Federal Rule of Civil Procedure 15(a), leave to

                                          -7-
amend a complaint should be freely given in order to promote justice. Ferguson, 88
F.3d at 650. But a party is not entitled to amend a complaint without making a
showing that such an amendment would be able to save an otherwise meritless claim.
Wisdom v. First Midwest Bank, 167 F.3d 402, 409 (8th Cir. 1999). A district court
thus may deny a motion to amend a complaint when such an amendment would be
futile. See id.

        The County alleges that its proposed amended complaint would not be futile
because it removes all reference to Iowa’s Recording Act imposing a duty to record
mortgage assignments, and the district court denied the County’s claims on the basis
that it alleged a mandatory recording requirement. We believe, however, that these
alterations to the original complaint do not rescue the underlying meritless claims.
Although the proposed amended complaint makes no reference to any violation of a
recording statute or other mandatory recording requirement, the underlying claims are
still premised on the duty to record a mortgage assignment. Plymouth County’s
claims cannot survive in the absence of a mandatory recording requirement, and
altering the language of the complaint does not allow the County to evade this barrier
to stating a claim. Because we believe any amendment to the complaint would have
proved futile, we find that the district court acted within its discretion in denying the
motion to alter or amend.

                                          VI.

       For the foregoing reasons, we find that Plymouth County has standing to
pursue its claims. We further hold that the district court properly dismissed Plymouth
County’s claims for failure to state a claim upon which relief may be granted and
acted within its discretion by denying Plymouth County’s motion to alter or amend
its complaint. The judgment of the district court is affirmed.
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