Doane v. First Franklin Financial Corporation et al

Filing 22

ORDER signed by Judge Morrison C. England, Jr. on 06/11/12 ORDERING that defendants' 13 Motion to Dismiss is GRANTED with final leave to amend; the Request for Judicial Notice is GRANTED and the 14 Motion to Strike (ECF No. 14) is DENIED as MOOT. Plaintiff shall not add any additional claims to any amended complaint and shall file any amended complaint within 30 days. If no such amended complaint is filed within said time period, this action will be dismissed with prejudice and without any further notice to the parties. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARDENER JAMES DOANE,

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Plaintiff,

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No. 2:11-cv-02130-MCE-GGH

v.

MEMORANDUM AND ORDER

FIRST FRANKLIN FINANCIAL,
et al.,

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Defendants.
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----oo0oo----

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Before the Court are Defendants’ Motion to Dismiss

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Plaintiff’s First Amended Complaint (ECF No. 13) (“FAC”),1 Motion

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to Strike (ECF No. 14) (“MTS”), and Request for Judicial Notice

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(ECF No. 13, Att. 1) (“RJN”).2

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On August 8, 2011, Defendants filed motions to dismiss and
strike Plaintiff’s original complaint (see ECF Nos. 1, 6 and 7).
Rather than opposing these motions, on September 9, 2011,
Plaintiff filed the amended complaint (although it does not, on
its face, indicate that it has been amended) that is the subject
of the present motions (see ECF No. 8).
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Because oral argument will not be of material assistance,
the Court ordered this matter submitted on the briefing. E.D.
Cal. R. 230(g).
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For the reasons that follow, Defendants’ Motion to Dismiss is

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GRANTED, the Request for Judicial Notice is GRANTED and the

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Motion to Strike is DENIED as MOOT.

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BACKGROUND3

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In March 2007, Plaintiff Gardener James Doane (“Plaintiff”

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or “Doane”), using Defendant Summit Funding (“Summit”) as his

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broker, obtained two mortgage loans from Defendant First Franklin

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Financial Corp. (“First Franklin”) for his property located at

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8333 Raffia Court, Antelope, CA 95843.

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ECF No. 13, Att. 1 (Request for Judicial Notice),4 Exs. A-B).

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The principal amount of the first mortgage was $300,000 and the

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second mortgage was for $75,000.

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(FAC, ¶¶ 67-68, see also

(FAC, ¶ 68, RJN, Exs., A-B.)

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To the extent possible, the following facts are taken from
Plaintiff’s FAC (ECF No. 1). For the purposes of this Motion,
the Court accepts Plaintiff’s facts as true and makes all
inferences in the light most favorable to Plaintiff.
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Pursuant to Federal Rules of Evidence 201(b) (authorizing
judicial notice of adjudicative facts “capable of accurate and
ready determination by resort to sources whose accuracy cannot be
reasonably questioned”), Defendants request the Court take
judicial notice of several documents. (RJN, ECF No. 13, Att. 1.)
Specifically, Defendants ask the Court to take judicial notice
of: (1) two Deeds of Trust executed by Plaintiff and First
Franklin (RJN, Exs. A and B); (2) the February 4, 2009, Notice of
Default (Id., Ex. C); (3) the May 7, 2009, Notice of Trustee’s
Sale (Id., Ex D); and (4) the Trustee’s Deed Upon Sale recorded
on April 28, 2010 (Id. at Ex. E). Defendants’ requests are
unopposed and are the proper subject of judicial notice. See,
e.g., Champlaie v. BAC Home Loans Servicing, LP, 706 F. Supp. 2d
1029, 1040 (E.D. Cal. 2009); Lee v. County of Los Angeles,
250 F.3d 668, 688 (9th Cir. 2001) (court may take judicial notice
of matters of public record). Accordingly, Defendants’ Request
for Judicial Notice (ECF No. 13, Att. 1.) is granted.
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The loans were funded by First Franklin and Doane signed

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promissory notes and executed deeds of trust in favor of First

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Franklin.

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Mortgage Electronic Registration System (“MERS”) as the nominee

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beneficiary under the loan.5

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Ex. 2 at 1.)

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and Defendant U.S. Bank, N.A., is alleged to be the trustee for

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the securitization pool that currently contains Doane’s loans

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pursuant to a pooling and servicing agreement.

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(FAC, ¶¶ 68-69.)

The Deed of Trust names Defendant

(See FAC, ¶ 79; RJN, Ex. A at 1;

Doane’s loan was allegedly securitized (FAC, ¶ 72),

(FAC, ¶ 74.)

Although Doane’s FAC does not make this clear, he apparently

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defaulted on the loan in 2009 and his house was sold pursuant to

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a trustee’s sale in 2010.

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Notice of Default was recorded with the Sacramento County

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Recorder on the $300,000 loan.

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2009, a Notice of Sale was recorded.

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property was thereafter sold in a trustee’s sale and a trustee’s

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deed upon sale was recorded on April 28, 2010.

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On June 3, 2011, Doane filed his complaint in state court, (see

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ECF No. 1, Ex. A), and Defendants thereafter removed the case to

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this Court on the basis of federal question jurisdiction stemming

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from Doane’s federal-law causes of action.

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September 26, 2011, after Doane amended his complaint, Defendants

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filed the present motions to dismiss and to strike.

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Specifically, on February 4, 2009, a

(RJN, Ex. C.)

Then, on May 7,

(RJN, Ex. C.)

Doane’s

(RJN, Ex. D.)

(Id.)

On

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Although Doane acknowledges MERS is the designated nominee
beneficiary, he also contends that because of unspecified “bogus
and fraudulent asignments,” “MERS never had an interest in the
deed of trust or the note.” (FAC, ¶¶ 79-82.)
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Doane’s forty-four page FAC raises factual allegations in

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both his “Factual Allegations” section, as well as in each

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separate cause of action, and he appears to be incorporating

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previously raised factual allegations in each claim without

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clearly identifying the facts upon which he relies, thereby

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making it difficult to ascertain what, exactly, he is alleging

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and relying on for any given claim.6

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understands his claims, it appears that Doane is generally

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alleging that:

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To the extent the Court

1.

The loan documents he signed do
agreement of the parties due to
mistakes by the parties, or due
fraud on every Defendants’ part

2.

All Defendants engaged in “bogus and fraudulent”
assignments and transfers of Doane’s loan (Id. at
¶¶ 75-80);

3.

He was orally promised (by whom is unspecified),
but never received, a permanent home loan through
the HAMP (Id. at ¶¶ 116, 159-63, 166-69, 175,
181-88);

4.

All Defendants “manufactured” unspecified
documents (Id. at ¶¶ 131-32, 140);

5.

All Defendants intentionally, illegally, and
improperly securitized his loan and did so by
means of unspecified misrepresentations and/or
omissions (see, e.g., id. at ¶¶ 7-18, 66-85,
189-212);

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not reflect the
unspecified
to unspecified
(FAC, ¶¶ 155-56);

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Furthermore, numerous paragraphs of the FAC appear to be
boilerplate allegations regarding matters such as (1) the process
of securitizing mortgage loans across the nation and allegations
of problems with that process (See, e.g., FAC, ¶¶ 19-65
(securitization); and (2) the implementation of the Home
Affordable Modification Program (“HAMP”) process and problems
that have allegedly occurred with its implementation (see id. at
¶¶ 86-116 (HAMP)). Although Doane appears to be alleging the
same type of issues that occurred elsewhere occurred here, he
fails to plead facts that tie the problems he alleges occurred
elsewhere to the parties and transactions at issue here.
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6.

Unspecified Defendants represented to him that no
foreclosure sale would occur, but then conducted
the foreclosure anyway. (Id. at ¶¶ 146-49.)

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All Defendants committed mail fraud by mailing him
the notices of default, notice of trustee’s sale,
and documents related to the loan modification
(Id. at ¶¶ 218-19).

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As a result of Defendants’ actions, Doane contends that he

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“has no idea who, if anyone, to whom [he] owe[s] money under the

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note and no idea who, if anyone, holds an enforceable security

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interest.”

(Id. at ¶ 85) (altered for clarity.)

He contends

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that the loan was an illegal security, based on an unlawful

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object, so lacks consideration and is void or voidable.

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¶ 212.)

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(unspecified) intent of the parties.

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asserts that the trustee’s sale constituted a wrongful

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foreclosure because none of the Defendants had a lawful interest

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in the property at issue.

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actions caused him extreme emotional distress.

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243, 247-48).

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(Id. at

He claims the contract must be reformed to reflect the

(Id. ¶ 1.)

(Id. at ¶ 157.)

He also

He also claims Defendants’
(Id. at ¶¶ 240,

Doane asserts ten causes of action; two federal law claims

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and eight state or common law claims.

His first federal cause of

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action, his seventh listed claim, is an intentional

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misrepresentation claim for violations of the Securities Exchange

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Act of 1934 (“Securities Exchange Act”) and U.S. Tax Code, in

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which he essentially asserts that the note was securitized by

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means of a pooling agreement, and that the parties involved in

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the securitization intentionally did not follow the proper

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securitization process to qualify as Real Estate Mortgage

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Investment Conduit (“REMIC”).

(Id. at ¶¶ 189-212.)
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Doane’s second federal cause of action, his eighth claim, is for

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Civil Racketeer Influenced and Corrupt Organization Act (“RICO”)

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violations.

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action are for: (1) declaratory relief (Id. at ¶¶ 123-44);

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(2) detrimental reliance (Id. at ¶¶ 145-51); (3) reformation of

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contract (Id. at ¶¶ 152-57); (4) promissory estoppel (Id. at

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¶¶ 158-63); (5) misrepresentation (Id. at ¶¶ 164-72); (6) unfair

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business practices under California’s Bus. & Prof. Code § 17200,

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et seq. (Id. at ¶¶ 173-88); (7) intentional infliction of

(Id. at ¶¶ 213-33.)

Doane’s remaining causes of

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emotional distress

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infliction of emotional distress (Id. at ¶¶ 234-43).

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(Id. at ¶¶ 234-43); and (8) negligent

Doane’s prayer for relief seeks: (1) a declaratory judgment

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that the contract was breached and ordering Defendants to offer

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him a permanent loan modification; (2) specific performance of

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the contract; (3) punitive damages; (4) a determination the

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original contract is void and unenforceable; (5) attorney’s fees

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and costs; and (6) whatever other relief the Court deems

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necessary and proper.

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(Id. at pages 43-44.)

Defendants move to dismiss (ECF No. 13), under

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Fed. R. Civ. P. 12(b)(6)7 on the basis that Doane’s FAC is

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generally insufficient to put them on notice of Doane’s claims

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against them, and his allegations are insufficient to satisfy the

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elements of each of his specific causes of action.

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No. 13.)

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of Doane’s complaint on the basis that they are “redundant,

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immaterial, impertinent or scandalous.”

(See ECF

In addition, Defendants move to strike certain portions

(See MTS at pages 4-7.)

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All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
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I.

MOTION TO DISMISS
A.

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Standard

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On a motion to dismiss for failure to state a claim under

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Rule 12(b)(6), all allegations of material fact must be accepted

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as true and construed in the light most favorable to the

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nonmoving party.

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337-38 (9th Cir. 1996).

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plain statement of the claim showing that the pleader is entitled

Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,
Rule 8(a)(2) requires only “a short and

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to relief” in order to “give the defendant fair notice of what

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the...claim is and the grounds upon which it rests.”

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Corp. v. Twombly, 550 U.S. 544, 554-55 (2007) (internal citations

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and quotations omitted).

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Rule 12(b)(6) motion to dismiss does not need detailed factual

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allegations, a plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a

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cause of action will not do.”

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quotations omitted).

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enough to raise a right to relief above the speculative level.

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Id. (citing 5 C. Wright & A. Miller, Federal Practice and

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Procedure § 1216, pp. 235-36 (3d ed. 2004) (“The pleading must

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contain something more...than...a statement of facts that merely

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creates a suspicion [of] a legally cognizable right of action”)).

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Bell Atl.

Though “a complaint attacked by a

Id. at 555 (internal citations and

A plaintiff’s factual allegations must be

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Moreover, “Rule 8(a)(2)...requires a ‘showing,’ rather than

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a blanket assertion of entitlement to relief.

Without some

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factual allegation in the complaint, it is hard to see how a

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claimant could satisfy the requirements of providing not only

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‘fair notice’ of the nature of the claim, but also ‘grounds’ on

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which the claim rests.”

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citations omitted).

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to state a claim to relief that is plausible on its face.”

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at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 677-679 (2009).

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If the “plaintiffs...have not nudged their claims across the line

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from conceivable to plausible, their complaint must be

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dismissed.”

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A court granting a motion to dismiss a complaint must then decide

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whether to grant leave to amend.

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to freely grant leave to amend when there is no “undue delay, bad

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faith[,] dilatory motive on the part of the movant,...undue

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prejudice to the opposing party by virtue of...the amendment,

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[or] futility of the amendment....”

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178, 182 (1962).

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clear the deficiencies of the complaint cannot be cured by

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amendment.

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658 (9th Cir. 1992); Balistieri v. Pacifica Police Dept.,

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901 F.2d 696, 699 (9th Cir. 1990) (“A complaint should not be

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dismissed under Rule 12(b)(6) unless it appears beyond doubt that

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the plaintiff can prove no set of facts in support of his claim

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which would entitle him to relief.”) (internal citations

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omitted).

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Twombly, 550 U.S. at 555, n.3 (internal

A pleading must contain “only enough facts
Id.

Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 680.

Rule 15(a) empowers the court

Foman v. Davis, 371 U.S.

Leave to amend is generally denied when it is

DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,

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ANALYSIS

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Doane’s FAC asserts two claims under federal law and several

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claims under state law.

The federal claims fail to state a

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facially plausible claim for relief and are therefore dismissed

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with final leave to amend.

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law claims are dismissed for lack of subject matter jurisdiction

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and the motion to strike parts of the record is denied as moot.

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Before turning to the substance of Doane’s federal claims,

Because of this, the remaining state

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the Court first addresses the FAC’s overall lack of adherence to

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the pleading standard set forth in Rule 8(a), as interpreted by

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Iqbal and Twombly.

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Rule 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief” in order to

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“give the defendant fair notice of what the...claim is and the

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grounds upon which it rests.”

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to provide the ‘grounds’ of his ‘entitlement to relief’ requires

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more than labels and conclusions, and a formulaic recitation of

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the elements of a cause of action will not do.”

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As the U.S. Supreme Court noted in Twombly,

However, “a plaintiff’s obligation

Id. at 555.

Here, Doane’s forty-four page FAC is long on conclusory

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allegations and short on facts specific to this particular

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transaction and these particular parties.

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Allegations include pages of what appear to be boilerplate

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statements regarding the process of securitizing loans in the

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United States, the HAMP process, etc., but provide few details

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about his particular loan, his communications with Defendants,

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what exactly he alleges each individual Defendant did and when it

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did it.

(See FAC, ¶¶ 19-122.)
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His Factual

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As discussed above, Doane also includes facts that are not

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included in his Factual Allegations section throughout his causes

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of action, making it difficult to ascertain what the factual

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basis for any particular claim may be.

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approach does not give Defendants, or the Court, fair notice of

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what Doane’s claims are or the grounds upon which they rest.

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Rule 8(a)(2).

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pigs, hunting for truffles buried in briefs.”

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Fellowship v. County of San Diego, 670 F.3d 957, 987 (9th Cir.

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As a general matter, this

See

As has been noted before, “judges are not like
Guatay Christian

2011).

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Furthermore, some of Doane’s claims appear to lack any

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factual basis at all.

For example, Doane’s conclusory allegation

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that the loan documents do not reflect the agreement of the

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parties, due to unspecified mistakes by the parties or due to

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unspecified fraud on Defendants’ part, does not appear to have

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any factual support in his FAC.

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his conclusory claims that unspecified Defendants “manufactured”

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documents, intentionally engaged in “bogus and fraudulent

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assignments,” and engaged in “mail fraud” essentially state legal

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conclusions and lack sufficient factual detail for the Court (or

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Defendants) to determine what, exactly, Doane is alleging was

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done, by whom, when, how, and why.

(FAC, ¶¶ 155-56).

Similarly,

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As the Court noted in Iqbal, “[a] claim has facial

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plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.”

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678.

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supporting facts is simply insufficient to maintain a claim.

556 U.S. at

However, reciting a legal conclusion without providing

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See Id. (“Threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, do not

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suffice.).

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In sum, the Court concludes that the FAC generally fails to

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adhere to Rule 8(a)’s pleading standard.

Although the Court is

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dismissing the FAC with final leave to amend, Doane is on notice

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that any amended complaint must conform to Rule 8's pleading

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standard, as interpreted by the Supreme Court’s decisions in

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Iqbal and Twombly.

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II.

FEDERAL CLAIMS
A.

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Securities and Tax Claims

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Doane’s Seventh Claim for Relief is titled “Intentional

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Misrepresentation[;] Violation of the Federal Securities

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Laws...and U.S. Tax Code.”

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contend that Defendants, by means of unspecified

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misrepresentations and/or omissions, purposely violated the

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Securities and Exchange Act, as well as the U.S. Tax Code, by

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intentionally failing to follow the proper process of

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securitizing his loan to qualify as a REMIC trust.

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¶¶ 19-85, 189-204.)

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(FAC at page 30.)

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Doane appears to

(FAC,

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Doane argues that these actions violate Section 10(b) and 10(b)-5

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of the Securities and Exchange Act8 and he asserts these actions

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also violate the “Step Transaction Doctrine,”9 “which treats

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multiple transactions as a single integrated transaction for tax

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purposes if all of the elements of at least one of three tests

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are satisfied: (1) the end result test, (2) the interdependence

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test, or (3) the binding commitment test.”

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1224 (discussing each of the tests);(see also FAC at ¶¶ 204-212.)

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Linton, 630 F.3d at

Doane seeks to unwind the trustee’s sale of the property by

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arguing that, by deliberately failing to properly follow the

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securitization process, the loan became part of an illegal

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security and therefore is both void and voidable.

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¶ 212.)

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had the authority to foreclose because their loan was improperly

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and illegally packaged and resold in the secondary market, where

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it was put into a trust pool and securitized.

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(Id. at

In essence, Doane is arguing that none of the Defendants

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Section 10(b) of the Securities Exchange Act makes it
unlawful for any person to “use or employ, in connection with the
purchase or sale of any security...any manipulative or deceptive
device or contrivance in contravention of such rules and
regulations as the Commission may prescribe as necessary or
appropriate in the public interest or for the protection of
investors.” 15 U.S.C. § 78j(b). SEC Rule 10b–5 implements this
provision by making it unlawful to, among other things, “make any
untrue statement of a material fact or to omit to state a
material fact necessary in order to make the statements made, in
the light of the circumstances under which they were made, not
misleading.” 17 CFR § 240.10b–5(b).
9

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Doane provides no authority for the “Step Transaction
Doctrine,” but this doctrine was recently discussed by the Ninth
Circuit in Linton v. U.S., 630 F.3d 1211, 1223-25 (9th Cir.
2011).
12

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To state a claim for intentional misrepresentation, a

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plaintiff must plead “(a) misrepresentation (false

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representation, concealment, or nondisclosure); (b) knowledge of

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falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce

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reliance; (d) justifiable reliance; and (e) resulting damage.”

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Kearns v. Ford Motor Co., 567 F.3d 1120, 1126 (9th Cir. 2009)

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(citation omitted).

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Therefore, under Rule 9(b), a party alleging fraud or

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intentional misrepresentation must satisfy a heightened pleading

10

standard by stating with particularity the circumstances

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constituting fraud.

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fraud must be accompanied by ‘the who, what, when, where, and

13

how’ of the misconduct charged.”

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317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Cooper v. Pickett,

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137 F.3d 616, 627 (9th Cir. 1997)).

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set forth more than the neutral facts necessary to identify the

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transaction.

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misleading about a statement, and why it is false.”

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Decker v. GlenFed, Inc., 42 F.3d 1541, 1548 (9th Cir. 1994)

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(superceded by statute on other grounds)).

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differentiate his allegations when suing more than one defendant,

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especially in the context of fraud claims.

23

Reiswig, 630 F.3d 952, 958 (9th Cir. 2011).

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Rule 9(b).

Specifically, “[a]verments of

Vess v. Ciba—Geigy Corp. USA,

Further, “a plaintiff must

The plaintiff must set forth what is false or
Id. (quoting

A plaintiff must also

See Destfino v.

Here, Doane’s allegations are conclusory, convoluted, vague

25

and generally fail to satisfy the pleading standards under

26

Rule 8(a) or 9(b).

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Defendants and attributes every act against all Defendants.

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fails the specificity requirement of Rule 9(b).

Doane brings this claim against all

13

This

1

It is not clear what acts were done, by whom, to whom, or when

2

these acts allegedly took place.

3

assist the Court to resolve the vagueness of his claims.

4

just one example, the contention that “bogus and fraudulent

5

assignments exist that have been executed by employees of

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Defendants, which assignments purport to transfer the beneficial

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interest in the mortgage, along with the note thereby secured”

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(FAC, ¶ 79) is a legal conclusion couched as a factual allegation

9

and is insufficient to sustain his claim.

His factual allegations do not
To cite

See Iqbal, 556 U.S. at

10

678 (“Threadbare recitals of the elements of a cause of action,

11

supported by mere conclusory statements, do not suffice.”)

12

Doane generally alleges that several transfers and

13

assignments took place and he contends that these transfers and

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assignments were fraudulent.

15

However, it is not at all clear what, exactly, made these

16

assignments and transfers “bogus and fraudulent.”

17

¶¶ 77, 79-80.)

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activity of assigning mortgage loans to a trust pool gives rise

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to a fraud claim against any and all Defendants.

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(See, e.g., FAC ¶¶ 67-85.)

(See FAC,

Doane has not adequately explained how the

In addition, to prevail on his claim that Defendants made

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material misrepresentations or omissions in violation of § 10(b)

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and Rule 10b–5, Doane “must prove ‘(1) a material

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misrepresentation or omission by the defendant; (2) scienter;

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(3) a connection between the misrepresentation or omission and

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the purchase or sale of a security; (4) reliance upon the

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misrepresentation or omission; (5) economic loss; and (6) loss

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causation.’”

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1

Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1318

2

(2011) (quoting Stoneridge Investment Partners, LLC v.

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Scientific–Atlanta, Inc., 552 U.S. 148, 157 (2008)).

4

not directly address the elements of this claim, nor do his

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conclusory Factual Allegations appear to support such a claim.

6

(See FAC, ¶¶ 67-85, 189-212.)

7

Doane does

Conclusory allegations of “bogus and fraudulent” transfers

8

are insufficient to demonstrate a material omission or

9

misrepresentation or scienter on Defendants’ part.

Exactly what

10

omissions or misrepresentations were made, by whom they were

11

made, and when they were made is not made clear in the FAC.

12

does Doane adequately describe how, exactly, he relied on these

13

alleged misrepresentations or omissions, or how, exactly, these

14

are tied to his particular loss.

15

contend that Defendants intended to violate the securities laws

16

at the time of his loan origination (i.e., before

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securitization), but these allegations are also unsupported.

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(See FAC, ¶ 194.)

19

Nor

Furthermore, Doane appears to

Further, Doane’s “Step Doctrine” allegations merely recite

20

the elements of the doctrine and conclude by asserting Defendants

21

violated the doctrine.

22

insufficient to state a claim under Rule 8(a).

23

556 U.S. at 678 (“Threadbare recitals of the elements of a cause

24

of action, supported by mere conclusory statements, do not

25

suffice.”).

26

(See FAC, ¶¶ 208-212).

This is
See Iqbal,

In sum, Doane’s federal security and tax law claims fails to

27

satisfy the pleading requirements of either Rules 8(a) or 9(b).

28

Defendants’ motion to dismiss the claim is therefore granted.
15

1

The Court will grant final leave to amend, but if Doane chooses

2

to assert these claims again, he is on notice that the Court will

3

expect his legal claims will be supported by specific factual

4

contentions (i.e., “‘the who, what, when, where, and how’ of the

5

misconduct charged.”

6

1106 (citation omitted)).

7

complaint shall comply with Rule 8(a)(2)’s “a short and plain

8

statement” requirement.

9

misrepresentation, federal securities law violations, and tax law

Vess v. Ciba—Geigy Corp. USA, 317 F.3d at
This, in turn, means that any amended

Lumping together claims for intentional

10

violations, without discussing the elements for each separate

11

cause of action, and relying on conclusory factual allegations in

12

support of these disparate claims, does not satisfy that

13

standard.

14

While it is conceivable that Doane may be able to state a

15

claim, at present his allegations are simply not plausible.

16

Twombly, 550 U.S. at 547 (“Because the plaintiffs here have not

17

nudged their claims across the line from conceivable to

18

plausible, their complaint must be dismissed.”).

19

motion to dismiss this claim is granted with final leave to

20

amend.

Defendants’

21
B.

22

RICO Claims

23
24

For his RICO claim, Doane contends that all Defendants

25

engaged in a RICO enterprise by mailing him various mortgage

26

documents for the purpose of defrauding him of his property.

27

((See FAC, ¶¶ 213-233.)

28

///
16

See

1

“To state a claim under § 1962(c), a plaintiff must allege

2

(1) conduct (2) of an enterprise (3) through a pattern (4) of

3

racketeering activity.”

4

547 (9th Cir. 2007) (en banc).

5

two acts of racketeering activity.” 18 U.S.C. § 1961(5).

6

mail fraud consists of the following elements: (1) formation of a

7

scheme or artifice to defraud; (2) use of the United States mails

8

or wires, or causing such a use, in furtherance of the scheme;

9

and (3) specific intent to deceive or defraud.

Odom v. Microsoft Corp., 486 F.3d 541,
A “ ‘pattern’...requires at least
Wire or

Schreiber

10

Distrib. Co. v. Serv–Well Furniture Co., 806 F.2d 1393, 1400 (9th

11

Cir. 1986).

12

Rule 9(b) provides that “[i]n alleging fraud ..., a party

13

must state with particularity the circumstances constituting

14

fraud,” while “[m]alice, intent, knowledge, and other conditions

15

of a person’s mind may be averred generally.”

16

“[t]he only aspects of wire [or mail] fraud that require

17

particularized allegations are the factual circumstances of the

18

fraud itself.”

19

Consequently,

Odom, 486 F.3d at 554.

Doane’s conclusory allegations are insufficient to state a

20

RICO claim under Rule 9(b).

For the majority of the RICO claim

21

elements, Doane simply lists each element and then alleges that

22

all of the Defendants violated it without specifying what,

23

exactly, Defendants did, which Defendants were involved, when the

24

alleged actions occurred or anything else that might satisfy

25

Rule 9(b)’s particularity requirement.

26

///

27

///

28

///
17

(See FAC, ¶¶ 213-233.)

1

To the extent he alleges that Defendants engaged in mail fraud by

2

mailing him the notice of default, notice of the trustee sale,

3

and documents related to his loan modification, it is not at all

4

clear why the mailing of these documents constituted mail fraud.

5

(Id.)

6

providing factual support is insufficient to maintain a claim.

7

See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements

8

of a cause of action, supported by mere conclusory statements, do

9

not suffice.”).

10

Again, reciting the elements of a cause of action without

The RICO claim is dismissed with final leave to amend.

11
C.

12

State Law Claims

13
14

Having dismissed Doane’s federal claims, the Court

15

determines that the FAC fails to state any federal claims and

16

therefore presents no basis for federal question jurisdiction or

17

for diversity jurisdiction.

18

alleges the following claims seeking relief under state law:

19

declaratory relief; detrimental reliance; reformation of

20

contract; promissory estoppel; misrepresentation; unfair business

21

practices; intentional infliction of emotional distress; and

22

negligent infliction of emotional distress.

23

///

24

///

25

///

26

///

27

///

28

///

28 U.S.C. §§ 1331, 1332.

18

The FAC

1

The Court declines to exercise supplemental jurisdiction over

2

these claims pursuant to 28 U.S.C. § 1367(c), and the state law

3

claims are therefore dismissed as moot.10

4
CONCLUSION

5
6
7

As a matter of law, and for the reasons set forth above,

8

Defendants’ Motion to Dismiss (ECF No. 13) is GRANTED with final

9

leave to amend, the Request for Judicial Notice is GRANTED and

10

the Motion to Strike (ECF No. 14) is DENIED as MOOT.

11

shall not add any additional claims to any amended complaint and

12

shall file any amended complaint not later than thirty (30)

13

calendar days after this Order is filed electronically.

14

such amended complaint is filed within said time period, this

15

action will be dismissed with prejudice and without any further

16

notice to the parties.

17

IT IS SO ORDERED.

18

Plaintiff

If no

Dated: June 11, 2012

19
20

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

21
22
23
24
10

25
26
27
28

However, were the Court to reach these claims, they would
be dismissed on the basis of the factual inadequacies and
conclusory allegations that riddle Doane’s factual allegations
and each of his causes of action. In the event that Doane
intends to amend his complaint, he is on notice that failure to
comply with the pleading standard set forth in Rule 8(a), as
interpreted by the Supreme Court in Iqbal and Twombly, will
result in dismissal of this action with prejudice.
19