Salvador et al v. PNC Bank, N.A.,

Filing 13

ORDER by Judge Richard Seeborg granting 12 Motion to Dismiss, with Leave to Amend. (cl, COURT STAFF) (Filed on 7/11/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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PRISCA SALGADO SALVADOR, et al.,
Plaintiffs,
v.

No. C 14-2219 RS
ORDER GRANTING MOTION TO
DISMISS, WITH LEAVE TO AMEND

PNC BANK, N.A.,
Defendant.
____________________________________/

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Pursuant to Civil Local Rule 7-1(b), the unopposed motion to dismiss is suitable for

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disposition without oral argument and the hearing set for July 17, 2014 is hereby vacated. In this

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action, removed from state court on diversity grounds, plaintiffs allege, in essence, that defendant

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exploited their limited English skills and took advantage of them in connection with a residential

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mortgage transaction. Plaintiffs attempt to state claims for fraud, negligent misrepresentation, and

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breach of the covenant of good faith and fair dealing. Defendant moves to dismiss, contending

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fraud is not pleaded with adequate specificity, that plaintiffs have not pleaded a duty sufficient to

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support a negligent misrepresentation, and that the allegations do not show a contractual breach of

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the covenant of good faith and fair dealing.

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Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim may be dismissed

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because of a “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A

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dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the

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absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare

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Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

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In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as

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true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous.

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Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999).

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The Court, however, is not required “to accept as true allegations that are merely conclusory,

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unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d

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1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.

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2001). Although they may provide the framework of a complaint, legal conclusions are not accepted
as true and “[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory

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For the Northern District of California

United States District Court

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statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); see also Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Additionally, Rule 9(b) of the Federal Rules of Civil Procedure requires that “[i]n allegations

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of fraud or mistake, a party must state with particularity the circumstances constituting fraud or

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mistake.” To satisfy the rule, a plaintiff must allege the “who, what, where, when, and how” of the

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charged misconduct. Vess v. Ciba-Geigy Corp. U.S.A., 317 F.3d 1097, 1106 (9th Cir. 2003). In

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other words, “the circumstances constituting the alleged fraud must be specific enough to give

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defendants notice of the particular misconduct so that they can defend against the charge and not

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just deny that they have done anything wrong.” Id. Rule 9(b) applies to the fraud elements of a

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claim under RICO.

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Without concluding that each and every argument raised by defendant’s motion has merit, it

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is clear that the complaint fails to satisfy these standards. See also, Fortaleza v. PNC Financial

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Services Group, Inc., 642 F.Supp.2d 1012 (N.D. Cal 2009) (dismissing similar claims for

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inadequate pleading of fraud and breach of contract). It further appears that plaintiffs may have

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abandoned this action. Accordingly, the motion to dismiss is granted, with leave to amend. In the

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event no amended complaint is filed by July 31, 2014, the action will be dismissed and the file

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closed, without further notice.

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IT IS SO ORDERED.

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Dated: 7/11/14
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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