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)

Download PDF
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. ยง 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 I ! I ! 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.

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?