Brambila et al v. Reo Bay Area, LP et al

Filing 31

ORDER GRANTING MOTIONS TO DISMISS FILED BY DEFENDANTS REO AND KIMBALL, TIREY & ST. JOHN(SI, COURT STAFF) (Filed on 11/16/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PEDRO A. BRAMBILA, and
DOMINGA BRAMBILA,

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United States District Court
For the Northern District of California

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No. C 11-03202 SI
ORDER GRANTING MOTIONS TO
DISMISS FILED BY DEFENDANTS REO
AND KIMBALL, TIREY & ST. JOHN

Plaintiffs,
v.
REO BAY AREA, LP, and KIMBALL, TIREY
& ST. JOHN, LLP,
Defendant.

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On October 13, 2011, defendants REO Bay Area (“REO”) and Kimball, Tirey, & St. John, LLP

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(“KTS”) filed a motion to dismiss plaintiffs’ First Amended Complaint (“FAC”). Doc. 25. No

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opposition has been filed. A hearing on this motion is scheduled for November 18, 2011. Pursuant to

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Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and

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hereby VACATES the hearing. For the following reasons, the Court GRANTS defendants’ motions to

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dismiss with prejudice.

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BACKGROUND

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On June 28, 2011, plaintiffs Pedro and Dominga Brambila filed this action in connection with

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the foreclosure of their home located at 410 Madera Street, Brentwood, California, against defendants

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REO and KTS. Plaintiffs alleged, inter alia, that defendants violated the Fair Debt Collections Practices

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Act, 15 U.S.C. § 1692 et seq (“FDCPA”) and 42 U.S.C. § 1983 in foreclosing on their home and in

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successfully pursuing unlawful detainer proceedings against them. See Doc. 1. Neither defendant is

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the original lender or foreclosing beneficiary. Instead, REO is the purchaser of the home from a

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trustee’s sale for value, and KTS is the law firm retained by REO to evict plaintiffs. See Doc. 17 at 2.

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In its September 9, 2011 Order, this Court granted defendants’ motion to dismiss the 42 U.S.C.

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§ 1983 and FDCPA claims, but granted plaintiffs leave to amend the FDCPA claim. The Court required

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that “any amended complaint must sufficiently allege both that the defendants can be defined as debt

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collectors as defined in 15 U.S.C. § 1692a(6), and sufficiently allege substantive violations of the

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FDCPA in order to survive subsequent motions to dismiss.” Doc. 17 at 8.

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On September 29, 2011, plaintiffs filed their First Amended Complaint (“FAC”). In the FAC,

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plaintiffs added two other defendants: Bank of America, N.A. (“BANA”); and Jackie Worden, the Clerk

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for the Contra Costa Superior Court. This Order addresses only defendants REO and KTS’ motion to

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dismiss.1

United States District Court
For the Northern District of California

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LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it

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fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss,

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the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face."” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff

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to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.”

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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). While courts do not require “heightened fact pleading

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of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative

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level.” Twombly, 550 U.S. at 544, 555.

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Pro se complaints are held to “less stringent standards than formal pleadings drafted by lawyers.”

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Haines v. Kerner, 404 U.S. 519, 520 (1972). Where a plaintiff is proceeding pro se, the Court has an

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obligation to construe the pleadings liberally and to afford the plaintiff the benefit of any doubt. Bretz

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v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, pro se pleadings must still

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allege facts sufficient to allow a reviewing court to determine whether a claim has been stated. Ivey v.

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Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court

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The motions to dismiss filed by newly-added defendants BAMA and Worden are addressed
in a separate order.
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must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the

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plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the

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court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions

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of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d.1049, 1055 (9th Cir. 2008).

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If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth

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Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend

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the pleading was made, unless it determines that the pleading could not possibly be cured by the

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allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal

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quotation marks omitted).

United States District Court
For the Northern District of California

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DISCUSSION

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In its September 9, 2011 Order, the Court specifically ordered that “any amended complaint must

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sufficiently allege both that the defendants can be defined as debt collectors as defined in 15 U.S.C.

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§ 1692a(6) and sufficiently allege substantive violations of the FDCPA,” in order to survive subsequent

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motions to dismiss by defendants REO and KTS. Doc. 17 at 8. The FAC - which is largely

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unintelligible - does neither. Instead, the comprehensible sections of the FAC allege new claims against

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new defendants and cite a variety of statutes, often without context. Indeed, REO and KTS are not

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mentioned by name in the FAC. The Court therefore dismisses plaintiffs’ federal claims against

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defendants REO and KTS with prejudice. As in its September 9, 2011 Order, the Court declines to

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exercise supplemental jurisdiction over plaintiffs’ state law claims against defendants, insofar as they

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exist.

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CONCLUSION
Accordingly, the Court GRANTS defendants’ motions to dismiss with prejudice.

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IT IS SO ORDERED.
Dated: November 16, 2011
SUSAN ILLSTON
United States District Judge

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