Tremper vs Vining et al

Filing 28

ORDER that the Defendants' Motion to Dismiss ECF No. 20 is DENIED without prejudice to renew at the close of discovery as a motion for summary judgment. Signed by Judge Howard D. McKibben on 02/27/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 EDWARD TREMPER, ) ) Plaintiff, ) ) vs. ) ) CYNTHIA ANN VINING and JOHN ) VINING, ) ) Defendants. ) ) _________________________________ ) 3:16-cv-00707-HDM-VPC ORDER 17 18 Before the court is the defendants’ motion to dismiss 19 plaintiff’s first amended complaint (ECF No. 20). 20 for dismissal on the grounds that the complaint does not satisfy 21 the pleading standards under Federal Rules of Civil Procedure 22 12(b)(6) and 9(b). 23 defendants have replied (ECF No. 27). 24 Defendants move Plaintiff has opposed (ECF No. 22), and Plaintiff Edward Tremper (“plaintiff”) filed his first amended 25 complaint on January 18, 2017, asserting seven causes of action 26 against his daughter, Cynthia Ann Vining, and one cause of action 27 against Cynthia’s husband, John Vining. 28 Cynthia improperly transferred $454,000.00 from an account owned by 1 Plaintiff alleges that 1 plaintiff to which Cynthia had been added for estate planning, 2 convenience and emergency purposes, only. 3 he and Cynthia orally agreed that absent authorization from 4 plaintiff, Cynthia was not to withdraw any funds from the account 5 until plaintiff’s death. 6 because Cynthia was a co-owner of the account, she had the legal 7 right to withdraw the funds and that the parol evidence rule bars 8 any claim of a contrary oral agreement because the account 9 agreement entered into between plaintiff, Cynthia, and the bank is Plaintiff asserts that Generally, the defendants argue that 10 a written agreement between plaintiff and Cynthia. 11 argue that they therefore cannot be liable under any of plaintiff’s 12 causes of action. 13 fails to plead sufficient facts to state plausible claims for 14 relief and that plaintiff’s fraud claim fails to satisfy the 15 heightened pleading standard of Rule 9(b). 16 Defendants Defendants also argue that plaintiff’s complaint In considering a motion to dismiss under Rule 12(b)(6), the 17 court must accept as true all material allegations in the complaint 18 as well as all reasonable inferences that may be drawn from such 19 allegations. 20 2000). 21 the light most favorable to the nonmoving party. 22 States, 234 F.3d 428, 435 (9th Cir. 2000). 23 conclusions are not entitled to the presumption of truth. 24 v. Iqbal, 556 U.S. 662, 679 (2009). LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir. The allegations of the complaint also must be construed in Shwarz v. United However, legal Ashcroft 25 “Under the notice pleading standard of the Federal Rules, 26 plaintiffs are only required to give a ‘short and plain statement’ 27 of their claims in the complaint.” 28 1061, 1071 (9th Cir. 2009) (quoting Diaz v. Int’l Longshore & 2 Paulsen v. CNF, Inc., 559 F.3d 1 Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)). 2 While this rule “does not require ‘detailed factual allegations,’” 3 it “must contain sufficient factual matter . . . to state a claim 4 to relief that is plausible on its face.” 5 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 6 “A claim has facial plausibility when the plaintiff pleads factual 7 content that allows the court to draw the reasonable inference that 8 the defendant is liable for the misconduct alleged.” 9 pleading is insufficient if it offers only labels and conclusions, Iqbal, 556 U.S. at 678 Id. A 10 a formulaic recitation of the elements of a cause of action, or 11 “naked assertions devoid of further factual enhancement.” 12 (internal punctuation omitted). 13 Id. Under Rule 9(b), “a party must state with particularity the 14 circumstances constituting fraud . . . . Malice, intent, knowledge, 15 and other conditions of a person’s mind may be alleged generally.” 16 Fed. R. Civ. P. 9(b). 17 state with particularity the circumstances constituting the fraud, 18 including an account of the “time, place, and specific content of 19 the false representations as well as the identities of the parties 20 to the misrepresentation.” 21 1058, 1066 (9th Cir. 2004). 22 ‘specific enough to give defendants notice of the particular 23 misconduct which is alleged to constitute the fraud charged so that 24 they can defend against the charge and not just deny that they have 25 done anything wrong.’” 26 1019 (9th Cir. 2001) (internal punctuation omitted). 27 28 To comply with the rule, the complaint must Edwards v. Marin Park, Inc., 356 F.3d “[A]llegations of fraud must be Bly-Magee v. California, 236 F.3d 1014, The court concludes that the plaintiff’s first amended complaint states claims for relief that are plausible on their 3 1 face, thus satisfying the Rule 12(b)(6) standard, and alleges 2 sufficient facts to satisfy the heightened pleading standard of 3 Rule 9(b). 4 20) is DENIED without prejudice to renew at the close of discovery 5 as a motion for summary judgment. Accordingly, the defendants’ motion to dismiss (ECF No. 6 IT IS SO ORDERED. 7 DATED: This 27th day of February, 2017. 8 9 ____________________________ UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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