United States of America v. Tarpey et al

Filing 94

ORDER granting 79 Motion to Dismiss for Failure to State a Claim; granting 81 Motion to Dismiss for Failure to State a Claim. ORDERED: 1. Broyles was given the opportunity to amend his crossclaim to "get it right". He has failed to do so. An additional leave to further amend will not be accorded. 2. The renewed motions to dismiss Broyles crossclaim filed by James Tarpey, Project Philanthropy, and Timeshare Closings are each and all GRANTED. Signed by Judge Sam E Haddon on 9/29/2016. (ELL, )

FILED
SEP 2 9 2016
IN THE UNITED STATES DISTRICT COURT

Clerk, U.S. District Court
District Of Montana
Helena

FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

No. CV 15-72-BU-SEH

vs.

ORDER
(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;
Defendants.
Plaintiff United States commenced this action on November 23, 2015,
against James Tarpey ("Tarpey"), Project Philanthropy, Inc. d/b/a Donate For a
Cause ("Project Philanthropy"), Timeshare Closings, Inc. d/b/a Resort Closings,
Inc. ("Timeshare Closings"), Ron Broyles ("Broyles"), Curt Thor, and Suzanne
Crowson f/k/a Suzanne Tarpey, for alleged violation of 26 U.S.C. §§ 6700, 6701,
and 6695A.

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On July 11, 2016, the Court dismissed the crossclaim of Broyles against
Tarpey, Project Philanthropy, and Timeshare Closings for inadequacy of pleading
requirements under Bell Atlantic Corporation v. Twombley1 and Ashcroft v. lqba/2
and later Ninth Circuit decisions. An amended crossclaim was filed with leave of
court on July 20, 2016. Fully briefed motions to dismiss the amended crossclaim
are pending.
On February 24, 2016, the Court issued a Final Judgment of Permanent
Injunction Against Curt Thor. Final judgment for permanent injunctions against
Tarpey, Project Philanthropy, and Timeshare Closings was entered on September
28, 2016.
The amended crossclaim against Tarpey, Project Philanthropy, and
Timeshare Closings, like the original crossclaim, fails to meet or satisfy minimal

Twombley and Iqbal standards. Necessary factual predicates are not pleaded, 3 the
factual basis for claiming a right to seek indemnification is not shown, and the

1

550 U.S. 544 (2007).

2

556 U.S. 662 (2009).

3

See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) ("'[W]e do not
necessarily assume the truth of legal conclusions merely because they are cast in the form of
factual allegations."') (quoting Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009)).
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attempt to cure pleading deficiencies by wholesale adoption by reference to other
pleadings is wide of the mark of the specificity of pleading required. In addition,
Broyles effort to inject California law by reference to a single provision of the
California Civil Code as the appropriate substantive choice of law to be applied in
addressing crossclaim issues is itself unwarranted and unjustified. 4
ORDERED:
1.

Broyles was given the opportunity to amend his crossclaim to "get it

right." He has failed to do so. An additional leave to further amend will not be
accorded.
2.

The renewed motions to dismiss Broyles crossclaim filed by James

Tarpey, Project Philanthropy, and Timeshare Closings 5 are each and all
GRANTED.
DATED this

af

_,/,_
..:-cfay of September, 2016.

United States District Court

4

See Paulsen, 559 F.3d at 1080 ("In a federal question action that involves supplemental
jurisdiction over state law claims, we apply the choice oflaw rules of the forum state .... ")
5

Docs. 79, 81.
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