David et al v. GMAC Mortgage, LLC

Filing 16

ORDER by Judge Hamilton Granting 7 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 3/13/2012)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 ASHLEY V. DAVID, et al., Plaintiffs, 8 9 v. ORDER GRANTING MOTION TO DISMISS GMAC MORTGAGE, et al., 11 For the Northern District of California 10 United States District Court No. C 11-6320 PJH Defendants. _______________________________/ 12 13 Defendant’s motion to dismiss came on for hearing on March 7, 2012 before this 14 court. Pro se plaintiffs Ashley V. David (“plaintiff”) and Nosheen David (both collectively 15 “plaintiffs”) did not appear, despite having filed no brief in opposition to the motion. 16 Defendant GMAC Mortgage, LLC (“GMAC”) appeared through its counsel, Ian J. Da 17 Cunha. Having read all the papers submitted and carefully considered the relevant legal 18 authority, the court hereby GRANTS defendant’s motion, for the reasons stated at the 19 hearing, and summarized as follows: 20 1. Plaintiffs’ complaint fails to satisfy the minimal notice pleading requirements of 21 Federal Rule of Civil Procedure 8. Rule 8 requires that the complaint include a “short and 22 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P 23 8(a)(2). Specific facts are unnecessary - the statement need only give the defendant “fair 24 notice of the claim and the grounds upon which it rests.” Erickson v. Pardus, 127 S.Ct. 25 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007)). In 26 order to survive a dismissal motion, a plaintiff must allege facts that are enough to raise her 27 right to relief “above the speculative level.” Twombly, 127 S.Ct. at 1965. While the 28 complaint “does not need detailed factual allegations,” it is nonetheless “a plaintiff’s 1 obligation to provide the ‘grounds’ of his ‘entitlement to relief’ [which] requires more than 2 labels and conclusions, and a formulaic recitation of the elements of a cause of action will 3 not do.” Id. at 1964-65. Here, the complaint is largely unintelligible and plaintiffs fail to 4 allege any circumstances, occurrences, or events which show defendant’s allegedly 5 wrongful conduct. Thus, plaintiffs fail to include “enough facts to state a claim to relief that 6 is plausible on its face...”. Id. at 1974. 7 8 9 Accordingly, defendant GMAC’s motion to dismiss the complaint in its entirety, is GRANTED. 2. To the extent plaintiffs’ complaint states a single cause of action alleging violation of the False Claims Act, this claim is also DISMISSED. As defendant notes, the 11 For the Northern District of California United States District Court 10 False Claims Act (“FCA”) prohibits individuals from engaging in specified fraudulent activity, 12 and makes persons who engage in such conduct liable to the United States government. 13 See 31 U.S.C. § 3729(a). Civil actions under the FCA may be brought either by the United 14 States or as a qui tam action by a private individual, wherein the private individual sues on 15 behalf of the government as well as the individual. See id. at § 3720(b)(1). Plaintiffs’ 16 allegations, however, appear to be asserted in plaintiffs’ private capacity, against a private 17 entity based on nonjudicial foreclosure proceedings. Thus, plaintiffs’ claim does not fall 18 within the scope of the FCA. Moreover, plaintiffs’ attempt to state fraudulent conduct on 19 defendant’s part fails to satisfy the heightened pleading requirements of Rule 9(b). See 20 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-05 (9th Cir. 2003) (the heightened 21 pleading standards of Rule 9(b) apply to allegations of fraud and allegations that sound in 22 fraud, including false misrepresentations). Thus, defendant’s motion to dismiss the FCA 23 claim is GRANTED on this ground. Dismissal of this claim is with prejudice, in view of the 24 FCA’s inapplicability to plaintiffs’ allegations. 25 3. Lastly, the court notes that even though unintelligible, the complaint appears 26 to be an attempt at forum shopping. Plaintiffs previously filed a complaint in case no. C 11- 27 2914 PJH asserting various causes of action pertaining to the same property and same 28 2 1 foreclosure proceedings. The complaint in that case was dismissed on December 7, 2011 2 for failure to state a claim, however, leave to amend was afforded. Rather than amend that 3 complaint, plaintiffs filed a new complaint in this case on December 14, 2011, and appealed 4 the dismissal of the C 11-2914 case on January 3, 2012. The instant new case was 5 reassigned to the undersigned pursuant to the Local Rules pertaining to related cases. The 6 Ninth Circuit dismissed the appeal in the C 11-2914 case. Plaintiffs never filed an 7 amended complaint in that case, nor did they seek an enlargement of time within which to 8 do so. 9 11 For the Northern District of California United States District Court 10 This case is DISMISSED with prejudice. The Clerk shall close the file. IT IS SO ORDERED. Dated: March 13, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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