United States of America v. Tarpey et al

Filing 76

ORDER granting 65 Motion to Dismiss for Failure to State a Claim; granting 67 Motion to Dismiss for Failure to State a Claim. Defendants' James Tarpey and Timeshare Closings, Inc. d/b/a Resort Closings, Inc. Motion to Dismiss Defendant Ron Broyles' Crossclaim and Defendant Project Philanthropy, Inc.'s Motion to Dismiss Defendant Ron Broyles' Crossclaim are GRANTED, subject to leave to and including July 22, 2016, in which to file an amended crossclaim meeting the pleadings requirement of Twombly and Iqbal, and current Ninth Circuit precedent. Signed by Judge Sam E Haddon on 7/11/2016. (ELL, )

IN THE UNITED STATES DISTRICT COURT

FILED

FOR THE DISTRICT OF MONTANA

JUL 1 1 2016
BUTTE DIVISION

Cieri<, u.s. District Court
Oistrict Of Montana
Helena

UNITED STATES OF AMERICA,
· Plaintiff,

No. CV 15-72-BU-SEH

vs.
(1) JAMES TARPEY;
(2) PROJECT PHILANTHROPY,
INC. d/b/a DONATE FOR A CAUSE;
(3) TIMESHARE CLOSINGS, INC.
d/b/a RESORT CLOSINGS, INC.;
(4) RON BROYLES;
(5) CURT THOR; and
(6) SUZANNE CROWSON f/k/a
SUZANNE TARPEY;

ORDER.
,

Defendants.
Defendants James Tarpey, Timeshare Closings, Inc. d/b/a Resort Closings,
Inc., and Project Philanthropy, Inc. have moved to dismiss Defendant Roy
Broyles' crossclaim. 1
The crossclaim as pleaded is inadequate to satisfy the pleading requirements

1

See Docs. 65 and 67.

-1-

of Bell Atlantic Corporation v. Twombley and Ashcroft v. Iqbaz3 and later Ninth
Circuit decisions. In Moss v. US. Secret Service, the Ninth Circuit noted that
"[p]rior to Twombly, a complaint would not be found deficient if it alleged a set of
facts consistent with a claim entitling the plaintiff to relief." 4 However, post-

Twombly, complaints only alleging "labels and conclusions," "formulaic
recitation[s]" or "naked assertion[s]" are inadequate pleadings and will not survive
a Fed. R. Civ. P. 12(b)(6) motion to dismiss. 5 Instead, "[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its face. "' 6 "Dismissal is proper when the
complaint does not make out a cognizable legal theory or does not allege sufficient
facts to support a cognizable legal theory." 7
ORDERED:
Defendants' James Tarpey and Timeshare Closings, Inc. d/b/a Resort

2

550 U.S. 544 (2007).

3

556 u .s. 662 (2009).

4

Moss v. US. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009) (citation omitted).

5

Twombly, 550 U.S. at 555, 557.

6

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see Cousins v. Lockyer, 568
F.3d 1063, 1067-68 (9th Cir. 2009) (finding the same).
7

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)
(citation omitted).
-2-

Closings, Inc. Motion to Dismiss Defendant Ron Broyles' Crossclaim8 and
Defendant Project Philanthropy, Inc.'s Motion to Dismiss Defendant Ron Broyles'
Crossclaim9 are GRANTED, subject to leave to and including July 22, 2016, in
which to file an amended crossclaim meeting the pleadings requirements of
Twombly and Iqbal, and current Ninth Circuit precedent.

DATED this

..ri

///day of July, 2016.

4lfr,f,fko1~
United States District Court

8

Doc. 65.

9

Doc. 67.
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