US Bank National Association et al v. Gunn

Filing 42

MEMORANDUM ORDER Granting with prejudice re 10 MOTION to Dismiss as it relates to the Ninth Counterclaim. Signed by Judge Richard G. Andrews on 3/26/2012. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

US BANK NATIONAL ASSOCIATION,
and SELECT PORTFOLIO
SERVICING INC.,
Plaintiffs,
v.

Civil Action No. 11-1155-RGA
1

LAMARGUNN,

\
Defendant.

J

MEMORANDUM ORDER

The Court considers the Plaintiffs' motion (D.I. 11, pp. 13-14) that the Defendant failed
to state a claim in his ninth Counterclaim. (D.I. 5, pp. 26-27). The Defendant alleges his
counterclaim is based on subchapter III of the Delaware Deceptive Trade Practices Act, 6 Del. C.
§ 2531. Section 2532 defines a "deceptive trade practice" to involve twelve different activities,
mostly involving "goods" or "services." The Defendant does not specify upon which subsection
he relies, nor is it obvious from his Counterclaim. There are four dates mentioned in the
Counterclaim, ranging from November 21, 1997, to December 15,2005. The Defendant's
factual theory in support of the Counterclaim cannot reasonably be figured out from what he
wrote. Thus, the Counterclaim should be dismissed for failure to state a claim upon which relief
could be granted. It does not appear that the Defendant could plead a viable claim, even if
allowed another chance. As the Delaware Supreme Court stated:
The Act is intended to address unfair or deceptive trade practices that interfere
with the promotion and conduct of another's business. Unlike the Consumer
Fraud Act, the DTPA is not intended to redress wrongs between a business and its

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customers.
Grand Ventures. Inc. v. Whaley, 632 A.2d 63, 65 (Del. 1993).

Amendment ofthe claim

would be futile.
Therefore, IT IS HEREBY ORDERED that the Plaintiffs' Motion to Dismiss is

GRANTED, and the Ninth Counterclaim is dismissed with prejudice.