AULETTA-SEGURA et al V. GREEN TREE SERVICING LLC

Filing 20

OPINION. Signed by Judge Dennis M. Cavanaugh on 7/30/2012. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
ROSALIND AULETTA-SEGURA,
:
ALBAN and NIKA CORBETT,
:
MOHAMMED and RABIA
:
SHAMSUDIN, ZENON SANCHEZ,
:
CAROLA SANCEZ, JUAN C. and
SANDRA C. SANCHEZ, LOVELYN and :
:
CECILIO TAN, MARINO TORRES,
:
:
Plaintiffs,
:
:
v.
:
GREEN TREE SERVICING, LLC, JOHN
DOE 1-10,

Hon. Dennis M. Cavanaugh

OPINION
Civil Action No. 11-cv-05538(DMC)(JAD)

Defendants.

DENNIS M. CAVANAUGH, U.S.D.J.
This matter comes before the Court upon motion by Defendant Green Tree Servicing, LLC
(“Defendant” or “Green Tree Servicing”) to dismiss the Complaint of Plaintiffs Rosalind AulettaSEgura, Alban and Nika Corbett, Mohammed and Rabia Shamsudin, Zenon Sanchez, Carola
Sanchez, Juan C. and Sandra C. Sanchez, Lovelyn and Cecilio Tan, and Marino Torres (collectively
“Plaintiffs”), pursuant to FED. R. CIV. P. 12(b)(6). Pursuant to FED. R. CIV. P. 78, no oral argument
was heard. After considering the submissions of all parties, it is the decision of this Court for the
reasons herein expressed that Defendant’s motion to dismiss is granted.1

1

The Court notes that the instant motion is one of many before this Court in twenty-five
related matters filed between September 22 and 23, 2011 following the dismissal of Almazan, et
al v. 1st 2nd Mortg. Co. Of N.J., Inc., et al., No. 10-1336, 2011 WL 2652149 (D.N.J. June 30,

I.

BACKGROUND2

This case arises out of the alleged predatory lending practices perpetrated by Defendants
during mortgage transactions entered into with Plaintiffs on their subject properties. Pls.’ Compl. ¶
2. Plaintiffs allege numerous Federal and State law claims, including but not limited to the Federal
Truth in Lending Act and Regulation Z, the Federal Real Estate Settlement Procedures Act, the
Home Ownership and Equity Protection Act, the Federal Racketeer Influenced and Corrupt
Organizations Act, the Fair Debt Collection Practices Act, the Fair Credit Report Act, State and
Federal High Cost Loan Statutes, the New Jersey Consumer Fraud Act, the New Jersey Lenders’
Liability Law, the New Jersey RICO statutes, breach of contract, fraud and misrepresentation,
negligence, among others. Pls.’ Compl. ¶ 2.
The Complaint in the instant matter was filed following the dismissal of the class action suit

2011). After reviewing the complaints in each of the related matters, it appears that all of the
complaints are substantively the same in several material regards and appear to be variations on
the same formulaic complaint. As a result, the complaints all suffer from the same deficiencies,
namely a failure to plead a plausible claim to relief. Accordingly, the Court will simultaneously
decide the twelve motions presently before it and dismiss the complaints in the following cases:
Lelina v. 1 st 2nd Mortgage Co. of NJ, Inc. (11-5517); Abanto v. Bank of America, N.A. (115519); Estacio v. Deutsche Bank Nat’l Trust Co. (11-5522); Abucay v. GMAC Mortgage Corp.
(11-5523); Salazar v. Nat’l City Bank (11-5528); Isip v. Nationstar Mortgage, LLC (11-5529);
Coolack v. Select Portfolio Servicing, Inc. (11-5531); Magat v. US Bank Nat’l Assoc. (11-5534);
Flores v. Wells Fargo, N.A. (11-5535); Cerciello v. First Franklin Loan Services (11-5536);
Auletta-Segura v. Green Tree Servicing, LLC (11-5538); and Abucay v. HomeEq Servicing (115539). This Court also notes that three related cases have already been dismissed by this Court
on the same grounds. See Gutierrez v. TD Bank, No. 11-5533, 2012 U.S. Dist. LEXIS 10724
(D.N.J. Jan. 27, 2012)(JLL); Aquino v. Aurora Loan Services, LLC, No. 11-5518, 2012 WL
2514844 (D.N.J. June 28, 2012)(DMC); and Flores, et al. v. HSBC, et al, No. 11-5525, 2012 WL
2522987 (D.N.J. June 29, 2012)(DMC).
2

The facts set-forth in this Opinion are taken from the Parties’ statements in their
respective moving papers.
2

in Almazan, et al v. 1st 2nd Mortg. Co. Of N.J., Inc., et al., No. 10-1336, 2011 WL 2652149 (D.N.J.
June 30, 2011)(Civ.A.No. 10-1336, ECF No. 191). The complaint in Almazan was dismissed
without prejudice on the grounds that Plaintiffs failed to adequately put any Defendants on notice
of any specific claims. (Civ.A.No. 10-1336, Opinion adopting Report and Recommendation June
2, 2011, at p. 7, ECF No. 185). Specifically, the Court noted that Plaintiffs’ Complaint “[did] not
inform any reader what the Defendants did wrong, to whom they did it, or when they did it.”Id.
Plaintiffs were directed to re-file separate complaints against only those Defendants that were
involved in their respective loans. Further, Plaintiffs were admonished, under the principles of
Younger Abstention, to consider the existence of any pending state foreclosure or federal bankruptcy
proceedings in determining whether to file a federal law suit. Id. at 9. Finally, the Court found
Defendants’ arguments regarding Plaintiffs’ counsel’s failure to comply with the Local Civil Rule
11.2, which directs a party to disclose whether the matter in controversy is the subject of any other
action pending in any court, were well founded. Id. The Court warned that “[a] second round of noncompliance with that Rule will result in sanctions upon the filing of the appropriate motions.” Id.
Defendant Green Tree Servicing, LLC (“Green Tree Servicing”) is a mortgage loan
originator in the United States and is named in the Complaint as a parent company of its acquired
lenders or subsidiaries residential mortgage-lending operations, as well as on the belief that Green
Tree Servicing directed, participated in and/or influenced the setting and establishing of creditrelating policies and underwriting guidelines and practices used by each of the other Defendants.
Pls.’ Compl. ¶¶ 11-12. Plaintiffs’ Complaint provides John Doe 1-10 as the alleged subsidiaries or
acquired lenders of Green Tree Servicing. Pls.’ Compl. ¶ 13. Plaintiffs allege that the Defendants
collectively established policies for retail and wholesale access to their loan products and that each
3

Defendant directed, participated in and/or influenced the setting and establishing of credit-related
policies, procedures, practices and underwriting guidelines used by each of the other Defendants.
Pls.’ Compl. ¶¶ 14-15.
The Complaint provides facts specific to each Plaintiffs’ respective mortgage.3 Such
allegations consist of a variation on the following combination of specific details and general
conclusions regarding the loans acquired:
Rosalind Auletta-Segura4
81. Borrower(s) purchased the condo unit on 12/6/2005 for $270,000.They secured a 1st
Mortgage thru MERS,Inc. and Atlantic Home Loans, Trenton, NJ.. The Borrowers executed
the appropriate Notes & Mortgages to the noted Lenders. The Mortgagees declared the loan
to be in default as of 5/1/2009.
82. First Mortgage: The loan was written as an fixed interest loan with a 30 year term in the
amount of $216,000.The interest rate was 7.50. The loan package was characterized as “High
Risk” due to the aggressive interest rate and the substantial subsequent LTV ratio. The
monthly payment was $1,510.33.
83. 2nd mortgage: since the Borrower, in a written statement, indicated that she did not have
a down-payment, an adjustable rate 2nd mortgage of $54,000 was granted by Atlantic Home
Loans. The loan was a variable rate balloon which details were not provided to the Borrower.
The purchase was therefore 100% financed since the loans totaled $270,000. A sellers
concession contributed $5,000 additional towards closing.

3

As noted in Gutierrez, the Complaint in this action, as well as in each related action,
essentially constitutes a re-filing of the original complaint from Almazan. 2012 WL 272807, at
*1. Judge Linares noted that the new complaints “siphoned off the individual lender Defendants
named in the Original and Amended Complaints into separate actions” and refiled the complaint
“slightly modified and tailored to each individual lender with a short section of around ten
numbered paragraphs detailing the facts of the specific named Plaintiffs with whom each
Defendant had made mortgage loans.” Id. As a result of this apparent re-filing, the counts
alleged in each complaint are identical, down to their numeric order. As noted by Judge Linares,
the only apparent difference among the Complaints are the addition of facts particular to each
named Plaintiff.
4

The following excerpt is taken directly from Plaintiffs’ Complaint to illustrate the nature
of the specific allegations provided for each Plaintiff, to the extent they are included.
4

84. The HUD-1 closing statement was not provided as signed. The Client was not provided
completed and signed FNMAE form 1003 Mortgage Applications, TIL Statement,
Amortization schedules, or Verification Statements for Employment and either a pro forma
or a Financial Statement. The Federal Disclosure Statement was not provided. Relevant
& vital documents were unsigned.
85. The Lenders and/or Assignees include: Atlantic Home Loans, IndyMac Mortgage
Services, One West Bank FSB, Provident Bank, and Green Tree Funding from Rapid City,
SD. Lender (s) regularly extended real-estate secured credit.
86. The source of the original mortgage solicitation was provided as a phone inquiry from
a sales rep: Mildred Estacio employed by Atlantic Home Loans, Inc. of Parsippany, NJ.
87. The loans were completed with no apparent employment/income verifications. They
were listed as “Stated Income” loans; these “honor system” representations are tripswitches for predatory lending.
88. The titling history revealed that the Borrower purchased the condo unit on 12/03/2005
for $270,000.The True Value of the property as calculated by the Municipality of Jersey City,
was @ $255,000+- in the time frame 2006-2009, indicating that the property was severely
over-valued by the Lenders to this transaction. The Loan therefore was 105% +- of the
Municipality True Value in the 4 year time line post-transaction. Appraisal Reports
presumably relied upon by the Lenders were or should have been suspect in their support of
inflated value. No PMI was noted but since the loan was characterized as “High Risk”, the
PMI protection was mandatory.
89. The large loan apparently disregarded the ability to repay since the review of the client’s
financial situation revealed insufficient reliable income and liquidity as well as extended
liabilities so as to make the aforementioned loan in excess of the Borrower’s ability to repay.
The purchase was fully financed with an additional $5,000 seller concession. This
extraordinary indebtedness would exert a stranglehold on the Borrower as the loans
progressed but Borrower resources did not.
90. Substantive Unconscionability: The UCCC considers entering into a transaction
with the knowledge that the consumer could not receive a “substantial benefit” from
it or if there was no reasonable probability of payment in full as demonstrable of
“Substantive Unconscionability.”
91. The loan rates appeared to be of sub-prime nature since they clearly exceeded the rate
borne by more “A” prime worthy customers. It was a classic “High Risk Loan” of “Balloon
& Rate Resets! Signed documentation including TIL, with annual percentage rate, finance
charge, amount financed and total of payments were not disclosed in a clear & conspicuous
5

manner as to reflect the legal obligations of the parties. Neither were these disclosures
segregated from other information in a consumer-keepable format. None of those available
documents were signed.
92. Absent proper customer notification cited above, and with no proper HOEPA notice,
written in conspicuous type size forthcoming, the Lender (s) seem seriously deficient in
disclosures.
93. The Lender’s should have been more aware of the shifting economic winds and have
insisted on greater applicant equity and subsequently followed a more conservative lending
policy to offset that pending value decline.
94. The loan amount was excessive and fraught with potential abuse. Defendants made
numerous material representations to Borrowers including loan affordability and the
deleterious effects of variable rate interest calculation.
95. Predatory Lending: The pattern of irregularities, unrealistic asset-based reliance,
flagrant lack of disclosures, and under-emphasis on liquidity contributed to predatory
lending. These deceptive practices, fraudulent acts and omissions seemed poised to
disregard and misrepresent the best interests of the Borrowers. High LTV loans set a
stage for unrealistic expectations of payment in the future. The property titling history
was undisclosed and the Municipality Tax Records indicate that the property was
oversold and therefore over-financed. 5
As demonstrated above, the only allegation specific to any named Defendant is that Green Tree
Servicing was somehow involved in Plaintiffs’ mortgage transaction. No details concerning the
alleged participation are provided. The remaining Plaintiffs at most provide a variation of
comparable facts and similarly do little more than allege some level of participation by Defendants
and other lenders in their mortgage transactions. The Court will address each Plaintiff’s specific
allegations in turn.
Alban and Nika Corbett are alleged to have secured a first mortgage on July 6, 2006 from

5

As will be discussed in greater detail below, these allegations closely mirror those
highlighted as factually deficient in the dismissal of the Gutierrez action. There, Judge Linares
found such allegations to “mimic the generality and legally conclusory statements made in the
rest of Plaintiffs’ Complaint.” 2012 WL 272807, at *4.
6

National City Mortgage of Indiana. The mortgage was declared to be in default on April 1, 2009.
In addition to National City Mortgage, Plaintiff also alleges that Green Tree Servicing, as well as the
successors and assigns of the named entities were in some way involved with their mortgage
transactions. Plaintiff does not provide any further facts regarding the specific participation of Green
Tree Servicing in the referenced mortgage.
Mohammed and Rabia Shamsudin allegedly secured a mortgage from American Financial
Resources on May 10, 2007. EMC allegedly became part of the lending transaction as well. The
mortgage eventually regressed into default. Plaintiffs provide no facts with respect to Defendant
Green Tree Servicing or its subsidiaries in connection with the Shamsudin mortgage.
Juan C. and Sandra C. Sanchez are alleged to have purchased a residence and secured a first
and second mortgage on the property to Weichert Financial Services. According to Plaintiff, the
closing documents on the first mortgage noted a “loan discount” in an amount of $5,640 to the
broker. Plaintiff maintains that the mortgagor/borrower was never apprised clearly of this fee. The
only facts alleged with respect to a named Defendant in connection with the Sanchez loan was that
Green Tree Servicing was among the lenders and/or assignees involved in the lending transaction.
Plaintiff does not further specify any conduct on the part of the Defendants.
Zenon Sanchez, Carola Sanchez, Lovelyn and Cecilio Tan, and Marino Torres are only
alleged to “[h]ave a similar situation with the rest of Plaintiffs given here.” No further facts are
provided concerning their respective mortgage transactions.
For the following reasons, this Court finds that the aforementioned allegations in connection
with the remaining general statements provided throughout the rest of the Complaint are insufficient
to state a claim upon which relief can be granted. Defendants Motion to Dismiss is therefore
7

granted.
II.

MOTION TO DISMISS

A.

LEGAL STANDARD
1.

Standard of Review for Motion to Dismiss for Lack of Subject Matter
Jurisdiction Pursuant to Rule 12(b)(6)

In deciding a motion under Rule 12(b)(6), a district court is “required to accept as true all
factual allegations in the complaint and draw all inferences in the facts alleged in the light most
favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). “[A]
complaint attacked by a ... motion to dismiss does not need detailed factual allegations.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. (internal citations omitted). “[A court
is] not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain,
478 U.S. 265, 286 (1986). Instead, assuming that the factual allegations in the complaint are true,
those “[f]actual allegations must be enough to raise a right to relief above a speculative level.”
Twombly, 550 U.S. at 555.
“A complaint will survive a motion to dismiss if it contains sufficient factual matter to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing
Twombly, 550 U.S. at 570). “A claim has facial plausibility when the pleaded factual content allows
the court to draw the reasonable inference that the Defendant is liable for misconduct alleged.” Id.
“Determining whether the allegations in a complaint are ‘plausible’ is a ‘context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Young v.
8

Speziale, 2009 WL 3806296, *3 (D.N.J. Nov. 10, 2009) (quoting Iqbal, 129 S.Ct. at 1950).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged–but it has not ‘shown’–that the pleader is entitled to relief.”
Iqbal, 129 S.Ct. at 1950.
2.

FED. R. CIV. P. 9(b)

Fraud-based claims are subject to FED. R. CIV. P. 9(b). Dewey v. Volkswagon, 558 F. Supp.
2d 505, 524 (D.N.J. 2008) (“[New Jersey Consumer Fraud Act] claims ‘sounding in fraud’ are
subject to the particularity requirements of Federal Rule of Civil Procedure 9(b).”). Under Rule 9(b),
“[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting
fraud or mistake.” A Plaintiff must state the circumstances of the alleged fraud “with sufficient
particularity to place the Defendant on notice of the ‘precise misconduct with which [it is] charged.’”
Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (citing Lum v. Bank of America, 361
F.3d 217, 223-224 (3d Cir. 2004). To satisfy this standard, the Plaintiff must plead or allege the
date, time and place of the alleged fraud or otherwise inject precision or some measure of
substantiation into a fraud allegation.” Id.
B.

DISCUSSION

Plaintiffs’ Complaint suffers from many of the same pleading deficiencies that were noted
in the Almazan case, as well as the dismissals of several similar complaints to follow. Accordingly,
this Complaint must also be dismissed. As previously noted, this Court explained that the complaint
in Almazan “[did] not inform any reader what the Defendants did wrong, to whom they did it, or
when they did it.” Although Plaintiffs may have cured the “who” deficiencies by filing this separate
complaint against those Defendants who were allegedly involved in their respective loans, Plaintiffs’
9

Complaint in this action remains deficient regarding the “what” and “when” of Defendants alleged
conduct.6 Such pleading deficiencies fail to properly place Defendants on notice of “any specific acts
that it or [its subsidiaries] committed during the course of its mortgage transactions with Plaintiffs.”
Gutierrez v. TD Bank, No. 11-5533, 2012 U.S. Dist. LEXIS 10724, at *11. (D.N.J. Jan. 27, 2012).
This Court has already found occasion to dismiss three similarly pled complaints filed in the
wake of the Almazan dismissal. Of particular note is the case of Gutierrez v. TD Bank, No. 11-5533,
2012 U.S. Dist. LEXIS 10724. (D.N.J. Jan. 27, 2012) in which the Honorable Jose L. Linares
provided an in depth discussion regarding the sufficiency of Plaintiffs’ complaint. There, on the
basis of a similarly pled complaint to that in issue here, Judge Linares found that “as a general
matter, the paragraphs in the complaint [did] not adequately put Defendant [ ] on notice of any
specific claims linked to specific acts that it or the John Doe Defendants committed during the
course of its mortgage transactions with the Plaintiffs.” Gutierrez v. TD Bank, 2012 U.S. Dist.
LEXIS 10724, at * 11. Rather, the Court found that the specific facts addressing the mortgage
transactions between Defendant and Plaintiffs were “scarce,” “while the Complaint extensively states
and restates legally conclusory statements regarding Defendant’s wrongful conduct as defined
exclusively within the terms of the relevant statutes or case law authority.”Id. at *17. By way of
example, Judge Linares found that, given the allegations raised by the complaint, Plaintiffs failed
to indicate:
which exact disclosures required by law were not provided; the nature and extent of any
credit reporting which occurred by Defendants in violation of federal law; what, if anything,
was inaccurate about such reporting; the substance of any written notices to Plaintiffs which
violated their rights under state law; which terms of any contract were breached by
6

This Court notes here that several of Plaintiffs’ pleadings do not even appear to remedy
the “who” deficiency as they fail to implicate any of the Defendants named to this action.
10

Defendants; the nature of the emotional distress suffered by Plaintiffs; what, if any, benefit
Defendants may have obtained due to alleged inaccuracies represented to Plaintiffs as
amounts owed for any loans; what representations, if any, Plaintiffs made to Defendants
regarding their financial circumstances and their “ability to repay” justifying their allegations
regarding Defendants predation, and so on.
Gutierrez, 2012 U.S. Dist. LEXIS 10724, at * 17-18. Finally, the Court took issue with the fact that
Plaintiffs’ opposition failed to cite to any paragraphs in the complaint “wherein facts relevant to their
alleged claims are discernable.” Id. at *18.
This Court followed suit from Gutierrez with the dismissal of the complaints in Aquino v.
Aurora Loan Services, LLC, No. 11-5518, 2012 WL 2514844 (D.N.J. June 28, 2012) and Flores, et
al. v. HSBC, et al, No. 11-5525, 2012 WL 2522987 (D.N.J. June 29, 2012). In Aquino and Flores,
the Court found that the Plaintiffs were similarly deficient in their pleadings and therefore failed to
state a claim upon which relief might be granted. Plaintiffs now present identical claims to those
raised in Gutierrez, Flores, and Aquino, as well as nearly identical factual allegations, with the
exception of the inclusion of the specific details of each Plaintiff’s mortgage summarized above.
Consequently, Plaintiffs’ Complaint suffers from the same factual deficiencies highlighted in the
preceding caselaw and must therefore be dismissed.7

7

The Court also notes that claims common to both the Gutierrez and the instant action
were dismissed in Gutierrez as not cognizable as a matter of law. 2012 U.S. Dist. LEXIS 10724,
at *35. Such claims include (1) furnishing inaccurate information to credit agencies (Count 5);
(2) failure to correct inaccurate reporting (Count 6); (3) failure to provide required notices and
disclaimers (Count 7); (4) predatory and negligent lending (Counts 10 and 28); (5) New Jersey
Licensed Lenders Act (Count 11); and (6) unfair business practices (count 16). The Court in
Gutierrez found that the aforementioned counts should be dismissed on the grounds that they
were redundant or failed to cite to any law or statute supporting a claim independent of the
claims already raised. The Court therefore dismissed the aforementioned claims without
prejudice “to Plaintiffs’ amendment of any claims asserted therein which do not duplicate other
claims already stated in Plaintiff’s complaint.” Id. at *40. This Court echoes the conclusions
drawn in Gutierrez in further support of the dismissal of the aforementioned claims.
11

The Third Circuit has held that “[a]lthough a Plaintiff may use legal conclusions to provide
the structure for the complaint, the pleading’s factual content must independently ‘permit the court
to infer more than the mere possibility of misconduct.’” Guirguis v. Movers Specialty Servs., 346
Fed. App’x. 774, 777 (3d Cir. 2009), citing Iqbal, 129 S.Ct. at 1950. Here, Plaintiffs’ Complaint is
almost entirely a recitation of legal conclusions closely mirroring the language of the statutes
Defendants are claimed to have violated. Indeed, the Complaint does more to inform this Court of
the state of the law than it does to inform the Court of the facts upon which Plaintiffs’ claims are
based. Such pleading leaves this Court unable to discern the appropriate causes of action for which
Defendants might plausibly be held accountable. Moreover, the Court is left with the impression
that either Plaintiffs are unable to identify the true nature of the causes of action they allege, or that
Plaintiffs allege that Defendants have violated each statute in virtually every way conceivable.
Plaintiffs must provide some grounds upon which this Court may assess the sufficiency of each of
the claims asserted, yet they have failed do more than vaguely allege that Defendant was a participant
in some of the Plaintiffs’ mortgage transactions.
Accordingly, this Court finds that the entirety of Plaintiffs’ Complaint fails to plead with the
requisite particularity to satisfy even the liberal pleading standards of Rule 8(a), let alone the
heightened pleading standard for Plaintiffs’ fraud-based allegations under Rule 9(b).8 Plaintiffs’
8

With respect to the Gutierrez Plaintiff’s fraud-based claims, Judge Linares addressed the
argument, similarly raised here, that the requirements of Rule 9(b) should be relaxed for
circumstances where factual information is exclusively within the opposing party’s knowledge or
control. The Court found the rule cited by Plaintiffs to be inapplicable under the circumstances,
and this Court agrees. As noted by Judge Linares,
Plaintiffs need only state with particularity the who, what, when and where of the false
misrepresentations or omissions made by Defendants based on their familiarity with said
misrepresentations as experienced by them in the mortgage transactions . . .
12

Complaint must therefore be dismissed.9

III.

CONCLUSION

Accordingly, as this Court finds that Plaintiffs have failed to state a claim upon which
relief can be granted, Defendant’s motion to dismiss is granted without prejudice.

S/ Dennis M. Cavanaugh
DENNIS M. CAVANAUGH, U.S.D.J.
Date:
cc:

July 30 , 2012
All Counsel of Record
Hon. J. A. Dickson, U.S.M.J.
File

Id. at 25-26 (emphasis added). There, as here, “those facts are both within the Plaintiffs’ control
and need not be enumerated in every detail or with respect to each and every instance to meet the
heightened pleading standard for fraud-based claims.” Id. Just as the Gutierrez Plaintiff was not
relieved of its obligation to plead claims of fraud with specificity under Rule 9(b), Plaintiffs here
will not be so relieved.
9

As this Court finds that the motion to dismiss should be granted for the reasons herein
expressed, the Court declines to address the statute of limitations argument raised by Defendant
and addressed by Judge Linares in the Gutierrez opinion. Similarly, this Court declines to address
the arguments raised by Defendants concerning abstention.
13