Davis et al v. U.S. Bank NA et al

Filing 11

ORDER granting Defendants' 6 Motion to Dismiss. IT IS FURTHER ORDERED that Plaintiffs may file an amended complaint by October 28, 2011. The Clerk is directed to terminate this case without further order if Plaintiffs do not file an amended complaint by October 28, 2011. Signed by Judge Neil V Wake on 10/6/11.(LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15
16
17

Don Davis and Debra Davis, husband and)
)
wife,
)
)
Plaintiffs,
)
)
vs.
)
)
U.S. Bank National Association as Trustee)
for RGMSI 2006S12 Residential Funding,)
LLC fka Residential Funding Corporation;)
Mortgage Electronic Registration Systems;)
Merscorp; Executive Trustee Services,)
)
LLC; and Doe Corporations 1-40,
)
)
Defendants.
)

No. CV-11-01686-PHX-NVW
ORDER

18
Before the Court is Defendants’ Motion to Dismiss Complaint (Doc. 6), which the

19
20

Court will grant.

21

I.

Background

22

On September 1, 2006, Plaintiffs executed a promissory note and deed of trust in the

23

amount of $510,000, secured by property located at 1095 W. Via Palmas, Queen Creek,

24

Arizona 85242. At some point, Plaintiffs defaulted on their note, and a Notice of Trustee’s

25

Sale of the property was recorded on October 20, 2010. A trustee’s sale of the property has

26

not yet occurred.

27

Plaintiffs sought a preliminary injunction and temporary restraining order in Pinal

28

County Superior Court on June 30, 2011. After Plaintiffs’ request for a preliminary

1

injunction and temporary restraining order was denied, Plaintiffs filed the currently pending

2

complaint for breach of contract, accounting, quiet title. Defendants removed the action to

3

this Court on August 25, 2011 (Doc. 1).

4

II.

Legal Standards

5

A.

6

A claim must be stated clearly enough to provide each defendant fair opportunity to

7

frame a responsive pleading. McHenry v. Renne, 84 F.3d 1172, 1176 (9th Cir. 1996).

8

“Something labeled a complaint . . . , yet without simplicity, conciseness and clarity as to

9

whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a

10

complaint.” Id. at 1180. A complaint must contain “a short and plain statement of the claim

11

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Each allegation must

12

be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A complaint having the factual

13

elements of a cause of action present but scattered throughout the complaint and not

14

organized into a “short and plain statement of the claim” may be dismissed for failure to

15

satisfy Rule 8(a). Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988).

Rule 8, Federal Rules of Civil Procedure

16

B.

17

“In alleging fraud or mistake, a party must state with particularity the circumstances

18

constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Rule 9(b) requires allegations of fraud

19

to be “specific enough to give defendants notice of the particular misconduct which is alleged

20

to constitute the fraud charged so that they can defend against the charge and not just deny

21

that they have done anything wrong.” Bly-Magee v. California, 236 F.3d 1014, 1019 (9th

22

Cir. 2001). “While statements of the time, place and nature of the alleged fraudulent

23

activities are sufficient, mere conclusory allegations of fraud are insufficient.” Moore v.

24

Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989). Further,

25
26
27
28

Rule 9(b), Federal Rules of Civil Procedure

Rule 9(b) does not allow a complaint to merely lump multiple defendants
together but requires plaintiffs to differentiate their allegations when suing
more than one defendant and inform each defendant separately of the
allegations surrounding his alleged participation in the fraud. In the context
of a fraud suit involving multiple defendants, a plaintiff must, at a minimum,
identify the role of each defendant in the alleged fraudulent scheme.
-2-

1

Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 2007) (internal quotations, alterations,

2

and citations omitted).

3

C.

4

On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), all allegations of material fact

5

are assumed to be true and construed in the light most favorable to the nonmoving party.

6

Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Dismissal under Rule 12(b)(6) can

7

be based on “the lack of a cognizable legal theory” or “the absence of sufficient facts alleged

8

under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

9

Cir. 1990). To avoid dismissal, a complaint need contain only “enough facts to state a claim

10

for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

11

(2007). The principle that a court accepts as true all of the allegations in a complaint does

12

not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 129 S. Ct.

13

1937, 1949 (2009). “Threadbare recitals of the elements of a cause of action, supported by

14

mere conclusory statements, do not suffice.” Id. “A claim has facial plausibility when the

15

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

16

defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to

17

a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has

18

acted unlawfully.” Id. To show that the plaintiff is entitled to relief, the complaint must

19

permit the court to infer more than the mere possibility of misconduct. Id.

20

III.

Rule 12(b)(6), Federal Rules of Civil Procedure

Analysis

21

Defendants moved to dismiss Plaintiffs’ complaint on September 1, 2011 (Doc. 6).

22

Although Plaintiffs’ response to Defendants’ motion was due on September 19, 2011, no

23

response has been filed with this Court. Failure to respond alone is grounds for the Court to

24

grant Defendants’ motion to dismiss. See LRCiv. 7.2(i). The Court finds Plaintiffs’ failure

25

to respond to Defendants’ motion constitutes acquiescence to the motion being granted.

26

Nevertheless, the Court agrees with Defendants’ substantive analysis; the complaint fails to

27

allege sufficient facts to state a plausible claim for breach of contract, accounting, or quiet

28

title. The Court will therefore grant Defendants’ motion to dismiss on the merits for the
-3-

1

reasons stated in Defendants’ motion.

2

IV.

3

Leave to Amend
Leave to amend should be freely given “when justice so requires.” Fed. R. Civ.

4

P. 15(a)(2). Plaintiffs will be given an opportunity to amend their complaint to make clear

5

their allegations in short, plain statements that state a plausible claim for relief. Any amended

6

complaint must conform to the requirements of Rule 8(a), 8(d)(1), and 9(b) of the Federal

7

Rules of Civil Procedure. Plaintiffs are warned that if they elect to file an amended

8

complaint and fail to comply with the Federal Rules of Civil Procedure, the action may be

9

dismissed. See Fed. R. Civ. P. Rule 41(b); McHenry, 84 F.3d at 1177 (affirming dismissal

10

with prejudice of prolix, argumentative, and redundant amended complaint that did not

11

comply with Rule 8(a)); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir.

12

1981) (affirming dismissal of amended complaint that was “equally as verbose, confusing,

13

and conclusory as the initial complaint”); Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir.

14

1965) (affirming dismissal without leave to amend of second complaint that was “so verbose,

15

confused and redundant that its true substance, if any, [was] well disguised”).

16
17

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 6) is
granted.

18

IT IS FURTHER ORDERED that Plaintiffs may file an amended complaint by

19

October 28, 2011. The Clerk is directed to terminate this case without further order if

20

Plaintiffs do not file an amended complaint by October 28, 2011.

21

DATED this 6th day of October, 2011.

22
23
24
25
26
27
28
-4-