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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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EDWARD TREMPER,

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Plaintiff,
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vs.
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CYNTHIA ANN VINING and JOHN
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VINING,
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Defendants.
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_________________________________ )

3:16-cv-00707-HDM-VPC
ORDER

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Before the court is the defendants’ motion to dismiss

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plaintiff’s first amended complaint (ECF No. 20).

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for dismissal on the grounds that the complaint does not satisfy

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the pleading standards under Federal Rules of Civil Procedure

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12(b)(6) and 9(b).

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defendants have replied (ECF No. 27).

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Defendants move

Plaintiff has opposed (ECF No. 22), and

Plaintiff Edward Tremper (“plaintiff”) filed his first amended

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complaint on January 18, 2017, asserting seven causes of action

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against his daughter, Cynthia Ann Vining, and one cause of action

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against Cynthia’s husband, John Vining.

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Cynthia improperly transferred $454,000.00 from an account owned by
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Plaintiff alleges that

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plaintiff to which Cynthia had been added for estate planning,

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convenience and emergency purposes, only.

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he and Cynthia orally agreed that absent authorization from

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plaintiff, Cynthia was not to withdraw any funds from the account

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until plaintiff’s death.

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because Cynthia was a co-owner of the account, she had the legal

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right to withdraw the funds and that the parol evidence rule bars

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any claim of a contrary oral agreement because the account

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agreement entered into between plaintiff, Cynthia, and the bank is

Plaintiff asserts that

Generally, the defendants argue that

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a written agreement between plaintiff and Cynthia.

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argue that they therefore cannot be liable under any of plaintiff’s

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causes of action.

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fails to plead sufficient facts to state plausible claims for

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relief and that plaintiff’s fraud claim fails to satisfy the

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heightened pleading standard of Rule 9(b).

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Defendants

Defendants also argue that plaintiff’s complaint

In considering a motion to dismiss under Rule 12(b)(6), the

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court must accept as true all material allegations in the complaint

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as well as all reasonable inferences that may be drawn from such

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allegations.

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2000).

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the light most favorable to the nonmoving party.

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States, 234 F.3d 428, 435 (9th Cir. 2000).

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conclusions are not entitled to the presumption of truth.

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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

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“Under the notice pleading standard of the Federal Rules,

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plaintiffs are only required to give a ‘short and plain statement’

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of their claims in the complaint.”

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1061, 1071 (9th Cir. 2009) (quoting Diaz v. Int’l Longshore &
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Paulsen v. CNF, Inc., 559 F.3d

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Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)).

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While this rule “does not require ‘detailed factual allegations,’”

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it “must contain sufficient factual matter . . . to state a claim

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to relief that is plausible on its face.”

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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“A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.”

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pleading is insufficient if it offers only labels and conclusions,

Iqbal, 556 U.S. at 678

Id.

A

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a formulaic recitation of the elements of a cause of action, or

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“naked assertions devoid of further factual enhancement.”

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(internal punctuation omitted).

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Id.

Under Rule 9(b), “a party must state with particularity the

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circumstances constituting fraud . . . . Malice, intent, knowledge,

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and other conditions of a person’s mind may be alleged generally.”

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Fed. R. Civ. P. 9(b).

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state with particularity the circumstances constituting the fraud,

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including an account of the “time, place, and specific content of

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the false representations as well as the identities of the parties

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to the misrepresentation.”

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1058, 1066 (9th Cir. 2004).

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‘specific enough to give defendants notice of the particular

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misconduct which is alleged to constitute the fraud charged so that

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they can defend against the charge and not just deny that they have

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done anything wrong.’”

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1019 (9th Cir. 2001) (internal punctuation omitted).

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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
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face, thus satisfying the Rule 12(b)(6) standard, and alleges

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sufficient facts to satisfy the heightened pleading standard of

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Rule 9(b).

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20) is DENIED without prejudice to renew at the close of discovery

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as a motion for summary judgment.

Accordingly, the defendants’ motion to dismiss (ECF No.

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IT IS SO ORDERED.

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DATED: This 27th day of February, 2017.

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____________________________
UNITED STATES DISTRICT JUDGE

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