Samson v. One West Bank et al

Filing 61

ORDER by Judge Hamilton granting 48 Motion to Dismiss; finding as moot 51 Motion for Judgment as a Matter of Law; finding as moot 55 Motion to Correct Record; finding as moot 56 Motion to Amend/Correct. (pjhlc1, COURT STAFF) (Filed on 11/14/2011) (Additional attachment(s) added on 11/14/2011: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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MARILOU SAMSON,

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Plaintiff,

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v.

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ORDER GRANTING MOTION
TO DISMISS

ONE WEST BANK, et al.,

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No. C 10-4827 PJH

Defendants.
_______________________________/

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The motion of the sole remaining defendant, Aurora Loan Services LLC (“Aurora”),

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to dismiss the second amended complaint (incorrectly designated as the third amended

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complaint) in the above-entitled action came on for hearing before this court on November

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9, 2011. Plaintiff Marilou Samson appeared in pro per, and Aurora appeared by its counsel

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Victoria Edwards. Having read the parties’ papers and carefully considered their

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arguments and the relevant legal authority, and good cause appearing, the court hereby

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GRANTS the motion, as follows for the reasons stated at the hearing.

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The background of the case is as set forth in the court’s previous orders filed

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November 15, 2010, February 18, 2011, July 28, 2011, and August 22, 2011. In the

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second amended complaint, plaintiff asserts causes of action for (1) fraudulent

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misrepresentation, (2) “churning,” in violation of § 10(b)(5) of the 1934 Securities Act, and

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Rule 10b-5; and (3) promissory estoppel and waiver.

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In dismissing the first amended complaint, the court granted leave to amend as to

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only the fraud claims asserted by plaintiff. Because plaintiff failed to seek leave of court to

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add the Securities Act claim and the estoppel claim, the motion to dismiss those claims is

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GRANTED. The Securities Act claim is dismissed for the additional reason that the court

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previously ruled in the order granting defendant’s motion to dismiss the original complaint

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that plaintiff lacked standing to assert a claim under the Securities Act.

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The motion to dismiss the first cause of action for fraudulent misrepresentation is

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GRANTED, because plaintiff has failed to plead fraud with particularity as required by

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Federal Rule of Civil Procedure 9(b), and as directed in the order granting the motion to

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For the Northern District of California

United States District Court

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dismiss the first amended complaint.
The second amended complaint alleges that plaintiff obtained a loan from Evergreen

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Lending, Inc. (“Evergreen”), in July 2005, in the amount of $576,000; and that Evergreen

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falsely represented that the loan would be a fixed rate loan. The second amended

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complaint mentions Aurora only twice.

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The first mention is in the general allegations, where plaintiff asserts that “it appears

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as though Aurora Loan Services LLC became the servicer through the investment of

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Lehman Brothers which shows on the Security and Exchange Commission Edgar Search

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Site proves that there was a valid creation and security created from the Plaintiffs [sic] real

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property.” SAC ¶ 21. The second mention is in the third cause of action for promissory

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estoppel, where plaintiff asserts that Aurora was “agent or assign for One West or Indy,”

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with no supporting facts. SAC ¶ 38.

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In short, the second amended complaint includes no allegations of wrongdoing

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against Aurora, which means it fails to state a claim against Aurora and must be dismissed.

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The court has already twice granted leave to amend, and in the order dismissing the first

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amended complaint, provided specific instructions as to what plaintiff needed to do to state

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a fraud claim against Aurora. Because plaintiff completely failed to amend the complaint in

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accordance with the court’s instructions, the court finds that further leave to amend would

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be futile. Accordingly, the dismissal is WITH PREJUDICE.
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Having granted the motion to dismiss, the court finds that plaintiff’s remaining
motions must be DENIED as moot.

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IT IS SO ORDERED.

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Dated: November 14, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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