Chavez v. Deutsche Bank Trust et al

Filing 23

ORDER Granting 6 Motion to Dismiss. Denying without prejudice 7 Motion to Expunge Lis Pendens. Amended Complaint deadline: 1/31/2014. Signed by Chief Judge Gloria M. Navarro on 1/3/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Tranquilino Antonio Chavez,
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Plaintiff,
vs.
Deutsche Bank Trust,

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Defendant.

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Case No.: 2:13-cv-00732-GMN-PAL
ORDER

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Pending before the Court is the Motion to Dismiss (ECF No. 6) and Motion to Expunge

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Lis Pendens (ECF No. 7) filed by Defendant Deutsche Bank National Trust Company, to which

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pro se Plaintiff Tranquilino Antonio Chavez has filed a Response (ECF No. 14) and Defendant

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has filed a Reply (ECF No. 17).

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I. BACKGROUND

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Plaintiff originally filed his Complaint (ECF No. 1-1) in state court, and on April 29,

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2013, Defendant removed the action to this Court. (ECF No. 1.) On July 3, 2013, the Court

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entered an Order (ECF No. 19) dismissing “Lehman Brothers, Inc.” from the action.

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Plaintiff’s two-page Complaint (ECF No. 1-1), appears to be a form complaint, in which

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causes of action for intentional misrepresentation and negligent misrepresentation appear to be

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alleged. Defendant filed the instant Motion to Dismiss (ECF No. 6) along with a Request for

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Judicial Notice (ECF No. 8) and an Errata (ECF No. 15) correcting its exhibits.

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II. LEGAL STANDARD

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Rule 12(b)(6) of the Federal Rules of Civil Procedure mandates that a court dismiss a

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cause of action that fails to state a claim upon which relief can be granted. See North Star Int’l

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v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to
dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the
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complaint does not give the defendant fair notice of a legally cognizable claim and the grounds

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on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering

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whether the complaint is sufficient to state a claim, the Court will take all material allegations

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as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v.

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Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

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The Court, however, is not required to accept as true allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

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State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

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with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a

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violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

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Twombly, 550 U.S. at 555) (emphasis added).

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In order to survive a motion to dismiss, a complaint must allege “sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A claim has facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Id.

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“Generally, a district court may not consider any material beyond the pleadings in ruling

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on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the

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complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard

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Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly,

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“documents whose contents are alleged in a complaint and whose authenticity no party

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questions, but which are not physically attached to the pleading, may be considered in ruling on

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a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for

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summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule

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of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay

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Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers

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materials outside of the pleadings, the motion to dismiss is converted into a motion for

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summary judgment. See Fed. R. Civ. P. 12(d); Arpin v. Santa Clara Valley Transp. Agency, 261

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F.3d 912, 925 (9th Cir. 2001).

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If the court grants a motion to dismiss, it must then decide whether to grant leave to

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amend. Pursuant to Rule 15(a), the court should “freely” give leave to amend “when justice so

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requires,” and in the absence of a reason such as “undue delay, bad faith or dilatory motive on

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the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,

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undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the

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amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is

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only denied when it is clear that the deficiencies of the complaint cannot be cured by

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amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).

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III. DISCUSSION

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To state a claim for fraud or misrepresentation, a plaintiff must allege three factors: (1) a

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false representation by the defendant that is made with either knowledge or belief that it is false

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or without sufficient foundation; (2) an intent to induce another’s reliance; and (3) damages that

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result from this reliance. See Nelson v. Heer, 163 P.3d 420, 426 (Nev. 2007). A claim of “fraud

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or mistake” must be alleged “with particularity.” Fed. R. Civ. P. 9(b). A complaint alleging

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fraud or mistake must include allegations of the time, place, and specific content of the alleged

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false representations and the identities of the parties involved. See Swartz v. KPMG LLP, 476

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F.3d 756, 764 (9th Cir. 2007). Rule 9(b) does not allow a complaint to merely lump multiple

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defendants together but requires plaintiffs to differentiate their allegations when suing more

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than one defendant and inform each defendant separately of the allegations surrounding his

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alleged participation in the fraud.” Id.

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Here, Plaintiff’s allegations, taken together with the judicially noticeable documents

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submitted to the Court by Defendant, demonstrate an insufficient factual basis to satisfy the

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pleading requirements of Rule 9(b). Furthermore, even taking all material allegations as true

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and construe them in the light most favorable to Plaintiff, the Court cannot find that Plaintiff

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has alleged sufficient facts so as to render plausible an inference that Defendant has committed

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the violations Plaintiff claims. For this reason, Plaintiff’s Complaint must be dismissed

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pursuant to Rule 12(b)(6) for failure to state a legally cognizable claim and the grounds upon

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which it rests.

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However, the Court finds no basis to determine that there is no possibility for Plaintiff to
cure this deficiency through amendment; and accordingly, the Court will grant leave to amend
pursuant to Rule 15(a).

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IV. CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 6) is GRANTED.

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Plaintiff’s Complaint is dismissed without prejudice, with leave to file an amended pleading

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curing the deficiencies identified in this Order by January 31, 2014.

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IT IS FURTHER ORDERED that the Motion to Expunge Lis Pendens (ECF No. 7) is
DENIED without prejudice.

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DATED this 3rd day of January, 2014.
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Gloria M. Navarro
United States District Judge

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