CICCONE et al v. WORLD SAVINGS BANK, F.S.B. et al
Filing
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OPINION. Signed by Judge Mary L. Cooper on 10/3/2012. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CYNTHIA CICCONE, et al.,
CIVIL ACTION NO. 12-1661 (MLC)
O P I N I O N
Plaintiffs,
v.
WORLD SAVINGS BANK, F.S.B., et
al.,
Defendants.
THE PLAINTIFFS, Cynthia Ciccone and Clare Ciccone, originally
brought this action against the defendants, World Savings Bank,
F.S.B., Wachovia Corp., Wachovia Mortgage, Wachovia Bank, and Wells
Fargo Bank, N.A., in state court.
Not., Ex. A, Compl.)
(See dkt. entry no. 1, Rmv.
The plaintiffs allege that the defendants,
through various dealings relating to a mortgage on the plaintiffs’
property: (1) violated the New Jersey Consumer Fraud Act; (2)
committed common law fraud; and (3) violated the “New Jersey Fair
Debt Collections Act”.
(See id. at 8-12.)
The defendants removed
the action to this Court pursuant to 28 U.S.C. §§ 1441(a) and 1332.
(See Rmv. Not. at 2-3.)
THE DEFENDANTS now move to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure (“Rule”) 9(b) and Rule 12(b)(6).
(See dkt. entry no. 17, Defs.’ Mot.; see generally dkt. entry no.
17-1, Defs.’ Br.).
They argue that the Court should dismiss the
Complaint pursuant to Rule 9(b) because the claim for common law
fraud was not pleaded with particularity.
(See Defs.’ Br. at 7-9.)
They also argue that the Court should dismiss the Complaint
pursuant to Rule 12(b)(6) because that the plaintiffs have, with
respect to all three of the claims, failed to state claims upon
which the Court may grant relief.
(See id. at 10-16.)
THE PLAINTIFFS oppose the motion.
no. 18, Opp’n Br.)
(See generally dkt. entry
They argue that the fraud claim meets the
particularity requirements imposed by Rule 9(b).
(See id. at 12.)
They do not directly address the merits of the defendants’
arguments that pertain to Rule 12(b)(6).
an opportunity to amend the Complaint.
They do, however, request
(See id. at 13.)
THE COURT has the inherent power to control the docket.
See
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Rolo v. Gen. Dev.
Corp., 949 F.2d 695, 702 (3d Cir. 1991).
Further, it appears that
the plaintiffs’ request to amend the Complaint should be resolved
before the Court addresses the motion.
The Court will thus, for
good cause appearing, deny the motion without prejudice and direct
the plaintiffs to move before the Magistrate Judge for leave to
amend the Complaint.
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:
October 3, 2012
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