Fishberg et al v. D.R. Horton Incorporated et al
ORDER, Defendants D.R. Horton, Inc. and Continental Homes, Inc.'s Motion to Dismiss Claims of Plaintiffs Allen, Aroz, Benallie, Carrington, Evans, Field, Oliver, Griego, Orenstein, Parker, Schenk, Sikora, and Smith 13 pursuant to the Statute of Repose, § 12-552 is granted to the extent that Plaintiffs' Second Amended Complaint 21 is dismissed pursuant to Fed. R. Civ. P.8(a); Plaintiffs may file an amended complaint by 6/7/13. Signed by Judge Neil V Wake on 5/23/13. (REW)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Gary Fishberg, et al.,
D.R. Horton, Inc., et al.,
Before the Court is Defendants D.R. Horton, Inc. and Continental Homes, Inc.’s
Motion to Dismiss Claims of Plaintiffs Allen, Aroz, Benallie, Carrington, Evans, Field,
Oliver, Griego, Orenstein, Parker, Schenk, Sikora, and Smith Pursuant to the Statute of
Repose, § 12-552 (Doc. 13).
To decide a motion to dismiss, “[a] court may consider evidence on which the
complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the
document is central to the plaintiff’s claim; and (3) no party questions the authenticity of
the copy attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.
2006). Both sides have submitted exhibits (Docs. 13-1, 24-1) that do not satisfy the
foregoing conditions and which the Court does not consider in deciding Defendants’
motion to dismiss.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only “‘a short and
plain statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47, 78 S. Ct. 99 (1957)). A claim must be stated clearly enough to provide
each defendant fair opportunity to frame a responsive pleading. McHenry v. Renne, 84
F.3d 1172, 1176 (9th Cir. 1996). “Something labeled a complaint . . ., yet without
simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails
to perform the essential functions of a complaint.” Id. at 1180.
Plaintiffs’ Second Amended Complaint (Doc. 21) does not include the factual
allegations necessary to determine whether any claims are barred by Arizona’s
construction defect statute of repose, A.R.S. § 12-552. Because leave to amend should be
freely given “when justice so requires,” Fed. R. Civ. P. 15(a)(2), Plaintiffs will be granted
leave to file a further amended complaint.
IT IS THEREFORE ORDERED that Defendants D.R. Horton, Inc. and
Continental Homes, Inc.’s Motion to Dismiss Claims of Plaintiffs Allen, Aroz, Benallie,
Carrington, Evans, Field, Oliver, Griego, Orenstein, Parker, Schenk, Sikora, and Smith
Pursuant to the Statute of Repose, § 12-552 (Doc. 13) is granted to the extent that
Plaintiffs’ Second Amended Complaint (Doc. 21) is dismissed pursuant to Fed. R. Civ. P.
IT IS FURTHER ORDERED that Plaintiffs may file an amended complaint by
June 7, 2013.
Dated this 23rd day of May, 2013.
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