Ganjawala et al v. Jariwala

Filing 51

OPINION AND ORDER by Magistrate Judge Gerald L. Jackson GRANTING 38 Defendant's Motion to Dismiss Plaintiffs' Amended Complaint with Brief in Support. Further, 39 Defendant's Motion to Strike and 42 Plaintiffs' Motion to Amend Plaintiffs' Amended Complaint are DENIED AS MOOT. (pmb, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
YOGESH GANJAWALA and
RESHMA GANJAWALA,
Plaintiffs,
v.
JITENDRA JARIWALA,
Defendant.

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Case No. CIV-23-290-GLJ

OPINION AND ORDER
This matter comes before the Court on motion by Defendant Jitendra Jariwala for
dismissal of Plaintiffs’ Yogesh Ganjawala and Reshma Ganjawala Amended Complaint
for failure to state a claim. For the reasons set forth below, the Court finds that the
Defendant’s Motion to Dismiss Plaintiffs’ Amended Complaint with Brief in Support
[Docket No. 38] should be GRANTED.
BACKGROUND AND PROCEDURE HISTORY
On August 8, 2023, Plaintiffs Yogesh and Reshma Ganjawala filed their state court
Petition in Atoka County District Court, Case No. CJ-2023-38. Defendant removed it to
this Court on September 1, 2023, pursuant to this Court’s diversity jurisdiction. See Docket
Nos. 1-2. Defendant moved to dismiss two of Plaintiffs’ three causes of action (Count II
and III). See Docket No. 7. The Court granted the motion to dismiss Counts II and III
only, also granting Plaintiffs leave to file an Amended Complaint as to those two counts if

they so desired. 1 See Docket No. 32. Plaintiffs filed an Amended Complaint, but this
Court struck it for failure to comply with the instruction to include a redline version
showing the changes between the Petition and the Amended Complaint. See Docket Nos.
32-34. Plaintiffs re-filed the Amended Complaint, which again did not include a proper
redline version but contained gray highlighted portions that did not distinguish between
what was added and/or removed. See Docket No. 35 & Ex. 1. Notably, Plaintiffs amended
Count I despite that cause of action not being subject to this Court’s previous Order and
further failed to enumerate the paragraphs in pages 1-3, as well as certain paragraphs in
each cause of action. Id.
Plaintiffs allege in the Amended Complaint that they negotiated to purchase a motel
in Durant, Oklahoma in 2003 and that Defendant loaned them $45,000 as part of their down
payment. Plaintiff Yogesh 2 and Defendant, siblings, were both placed on the title as
owners. Plaintiffs assert that Defendant demanded repayment in 2008, and that they
purchased an automobile for Defendant in lieu of repayment. Docket No. 35, pp. 1-4.
Plaintiffs allege that Defendant then “demanded money” from them again, in 2010, but that
they told Defendant they could not pay him. Plaintiffs allege they ran the motel, lived there
without taking a salary, and paid the mortgage off in 2023, all without Defendant’s
contributions. Id. Prior to filing suit, Plaintiffs demanded Defendant either work at the

1

Plaintiffs’ assertion that the Court “required” an Amended Complaint is incorrect. Compare
Docket No. 32 (“Order”) (granting leave to amend the Second and Third Causes of Action) with
Docket No. 40, p. 1 (Plaintiffs’ Response) (“Plaintiffs filed an Amended Complaint as
required[.]”).
2
As both Plaintiffs share a last name, the Court refers to Plaintiffs’ first name for clarity.
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motel to relieve them or sign a deed. Id. Plaintiffs do not allege in the Amended Complaint
any purported response from Defendant with regard to this request, nor do they specify the
type of deed they requested he sign.
During the same time, Plaintiff Yogesh and Defendant’s mother began living with
Plaintiffs in 2003. Although she was entitled to Social Security benefits, Defendant (who
apparently lived in another state) was the payee for her Social Security check. Plaintiffs
allege that the mother told them that Defendant was to keep the money unless she
demanded any payouts, and that Plaintiff Yogesh and Defendant were to split the remainder
upon her passing. However, Plaintiffs allege that Defendant did not always send money
when requested while she was alive and did not send them a share of the monies after she
passed away in 2020. Id.
Plaintiffs raise three causes of action in the Amended Complaint: (1) declaratory
action for determination of partnership, (2) unjust enrichment, and (3) accounting. Docket
No. 35. Defendant moves to dismiss all three causes of action. As discussed below, the
Court finds Defendant’s motion to dismiss should be granted.
Additionally, Defendant moves for an order striking Plaintiffs’ Amended Complaint
for failure to comply with Fed. R. Civ. P. 10(b) (“A party must state its claims or defenses
in numbered paragraphs, each limited as far as practicable to a single set of
circumstances.”), and for failing to submit a proper redline version of the Amended
Complaint. Docket No. 39. Defendant seeks a revised, or Second Amended Complaint,
which complies with Rule 10(b) and has a proper redline version attached. In response,
Plaintiffs admit that they failed to enumerate the paragraphs in pages 1-3 of the Amended
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Complaint, but object to dismissal for this failure on grounds of substantial justice.
Plaintiffs do not address Defendants’ valid objection regarding the redline versions.
Defendant recognizes that the Motion to Strike is at odds with the pending motion to
dismiss, but explains the motions were filed close in time in order to streamline the
litigation, i.e., prevent further delays at this stage of the case. See Docket No. 49 (Reply
Brief). Because the Court finds that Defendant’s Motion to Dismiss should be granted in
its entirety, Defendant’s Motion to Strike [Docket No. 39] is denied as moot.
Simultaneously with their response to Defendant’s motion to dismiss, Plaintiffs
move to amend the Amended Complaint, again failing to submit a redline document and
instead proffering a version of the Amended Complaint in which all paragraphs, including
pages 1-3, have been numbered with all numbers highlighted in gray. See Docket No. 42
& Ex. 1. Although the lack of redline version makes it somewhat unclear, it appears that
this proposed Second Amended Complaint only contains changes to the numbering of
paragraphs, and no differences to the wording. Defendant objects to the motion to amend
to the extent it is intended to cure defects subject to the current pending motion to dismiss,
but not to an Amended Complaint in compliance with Fed. R. Civ. P. 10(b) only in the
event that any of Plaintiffs’ three causes of action survive the motion to dismiss. For the
same reason that Defendant’s Motion to Strike is denied as moot, Plaintiffs’ Motion to
Amend Plaintiffs’ Amended Complaint [Docket No. 42] is likewise denied as moot.
ANALYSIS
A Complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
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not required, but the statement of the claim under Rule 8(a)(2) must be “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)).

“A pleading that offers labels and

conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement . . . To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face. A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-557, 570 [internal quotation
marks omitted]). “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Although “the 12(b)(6)
standard does not require that Plaintiff[s] establish a prima facie case in [their] complaint,
the elements of each alleged cause of action help to determine whether Plaintiff[s have] set
forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
This requires a determination as to “‘whether the complaint sufficiently alleges facts
supporting all the elements necessary to establish an entitlement to relief under the legal
theory proposed.’” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)).
Declaratory Action. The Court first finds that Plaintiffs’ Amended Complaint
containing an altered first cause of action was done so without leave of Court, as the
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Original Order granting Defendant’s first motion to dismiss specifically contained
language granting leave to file as to the Second and Third Causes of action, but not the
first. See Docket No. 32, pp. 5, 7-8. Under Fed. R. Civ. P. 15(a)(2), “a party may amend
its pleading only with the opposing party’s written consent or the court’s leave.” Plaintiffs
here only obtained leave as to the Second and Third causes of action, and not the first, and
the Court has “inherent authority to impose compliance with its lawful mandate by striking
the improper amendments.” Whitehead v. Mgmt. & Training Corp., 2020 WL 1078739, at
*2-3 (D.N.M. Mar. 6, 2020) (“By knowingly filing an Amended Complaint that
significantly exceeds the scope of the Court’s Order granting him leave to amend, Plaintiff
has flouted Rule 15 and the Court’s Order.”) (citing Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 841 (10th Cir. 2005) (“[T]he court as an institution[] must and does
have an inherent power to impose order, respect, decorum, silence, and compliance with
lawful mandates.”).
Plaintiffs in this case have not only filed an expanded Amended Complaint without
leave of the Court, but the Amended Complaint admittedly fails to comply with Fed. R.
Civ. P. 10(b). Despite noting that Plaintiffs’ First Cause of Action is amended from the
state court Petition without leave of Court, Defendant does not raise a substantive argument
for striking it at this time, only as to form. Rather, both parties have proceeded to address
the substantive issues surrounding this amended claim. Additionally, the Court notes the
original Petition asked the Court to find “Defendant has no partnership interest,” Docket
No. 2, Ex. 1 (unnumbered paragraph), while the current Amended Complaint asks the
Court “to determine the partnership held by each of them, if any.” Docket No. 35, p. 4
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(unnumbered paragraph). In many respects, these requests are different sides of the same
argument. Because it appears both parties have substantively briefed the legal issues
surrounding all three causes of action raised in the Amended Complaint, and in the interests
of judicial economy, the Court declines to strike Plaintiffs’ First Cause of Action and
instead addresses the merits of the arguments raised and briefed by the parties, including
as to the First Cause of Action. See Fed. R. Civ. P. 1 (directing courts to construe and
apply the Federal Rules of Civil Procedure “to secure the just, speedy, and inexpensive
determination of every action and proceeding”). Plaintiffs and their Counsel are placed on
notice that future failures of this kind may nevertheless result in pleadings being stricken.
Plaintiffs’ first cause of action asks the Court to determine the partnership between
Plaintiffs and Defendant. See Docket No. 35, p 4. Defendant contends this declaratory
action is improperly pled and should therefore be dismissed. In support, Defendant argues
that this claim asks for improper resolution of factual claims and is an attempted
“workaround” of a breach of duty or breach of contract claim, seeking the Court to resolve
past factual questions, including the existence of any partnership terms and whether the
partnership exists at all. Plaintiffs assert the action is properly pled as “a declaratory action
as to whether-or-not that there was simply a loan to be repaid or that there was a partnership
and was the partnership breached by Defendant[.]” Docket No. 40, p. 2.
“[A] party to a contract is not compelled to wait until he has committed an act which
the other party asserts will constitute a breach, but may seek relief by declaratory judgment
and have the controversy adjudicated in order that he may avoid the risk of damages or
other untoward consequence.” Keener Oil & Gas Co. v. Consol. Gas Utilities Corp., 190
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F.2d 985, 989 (10th Cir. 1951) (citing Delaney v. Carter Oil Co., 174 F.2d 314, 317 (10th
Cir. 1949) (“One of the highest offices of declaratory procedure is to remove uncertainty
and insecurity from legal relations, and thus clarify, quiet and stabilize them before
irretrievable acts have been undertaken.”). “The test is whether the facts presented show
that ‘there is a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’”
Keener, 190 F.2d at 989 (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co. et al.,
312 U.S. 270, 273 (1941)). “The burden of establishing the existence of an actual
controversy rests with the party seeking a declaratory judgment.” Mira Holdings, Inc. v.
ZoomerMedia, Ltd., 676 F. Supp. 3d 909, 917 (D. Colo. 2023) (citing Cardinal Chem. Co.
v. Morton Int’l, Inc., 508 U.S. 83, 95 (1993)).
Plaintiffs complain that even though Defendant’s name is on the mortgages and
notes and is therefore on the title(s) to the relevant property, Defendant only paid $45,000
in contribution and Plaintiffs reimbursed Defendant for that contribution. Although there
exist scenarios where Defendant’s name on the title, despite his lack of apparent
contribution, would create future problems, Plaintiffs have alleged only that Defendant did
not pay as much as they did on a mortgage signed by both Plaintiff Yogesh and Defendant.
That was true from 2003 through 2023 when the mortgage was paid off. Plaintiffs’
Amended Complaint contains allegations from Plaintiffs to Defendant about what he
needed to do if he wanted to claim a partnership interest, but contains no allegation that
Defendant took any action to claim a partnership, much less the terms of the alleged
partnership. This Court agrees with the persuasive opinion from the Southern District of
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Florida that “a legal dispute over the correct interpretation of a contract is an appropriate
subject for declaratory relief. However, a factual dispute over whether a party breached a
contract is not.” Cantonis Co. v. Certain Interested Underwriters at Lloyds, London, 2019
WL 3429962, at *3 (S.D. Fla. May 9, 2019) (quotations omitted), report and
recommendation adopted, 2019 WL 3429140 (S.D. Fla. June 10, 2019).

Plaintiffs

nevertheless assert in their response that not only are they asking the Court to determine
whether there was a partnership (a legal dispute over the correct interpretation of a
contract), but to take the affirmative step of then determining a breach – an entirely separate
claim (a factual dispute over whether a party breached a contrast). The exact nature of any
legal dispute regarding the interpretation of a contract is unclear here. Moreover, “a case
or controversy must be based on a real and immediate injury or threat of future injury that
is caused by the defendants[.]” Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329,
1339 (Fed. Cir. 2008) (“Taking all the facts into account, Prasco has not met this threshold
burden of proving an immediate and real controversy. Important to the totality of the
circumstances analysis in the instant case is that which has not occurred.”). Plaintiff alleges
no real and immediate injury or threat of future injury, and Plaintiffs allege no facts
supportive of any kind of partnership, written or oral, that can be considered a legal dispute
over the correct interpretation of a contract. Plaintiffs allege they paid a mortgage to which
Plaintiff Yogesh was a signatory. Whether Defendant should have paid some or all of those
amounts, or whether he should be allowed to claim an ownership interest along with
Plaintiffs, is not subject to declaratory judgment as it is raised here.

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The Tenth Circuit instructs courts to weigh the following two questions: “Will a
declaration of rights, under the circumstances, serve to clarify or settle legal relations in
issue? Will it terminate or afford relief from the uncertainty giving rise to the proceeding?
If an affirmative answer can be had to both questions, the trial court should hear the case;
if not, it should decline to do so.” State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 983
(10th Cir. 1994). Arguably, the answer to both those questions appears to be in the
negative, but it is certainly negative by Plaintiffs’ own admission regarding the second
question. Accordingly, Plaintiffs’ First Cause of Action in the Amended Complaint should
be dismissed.
Notwithstanding the dismissal, the Court hereby grants Plaintiffs leave to file a
Second Amended Complaint in one last attempt to plead facts sufficient to state a claim
under Count 1. But see Jefferson County School Dist. No. R–1 v. Moody’s Investor’s
Services, Inc., 175 F.3d 848, 859 (10th Cir. 1999) (“Although Fed. R. Civ. P. 15(a) provides
that leave to amend shall be given freely, the district court may deny leave to amend where
amendment would be futile[.] A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal.”); see also Carrete v. New Mexico Racing
Comm’n, 2021 WL 6072581, at *7 (D.N.M. Dec. 23, 2021) (“Plaintiff’s oral request for
leave to amend the Complaint to assert a declaratory judgment claim under § 1983 will be
denied because amendment is futile given the lack of a present dispute between the parties
that a declaratory judgment would resolve.”).
Unjust Enrichment. Defendant contends that Plaintiffs’ Second Cause of Action
for Unjust Enrichment should be dismissed.
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Plaintiffs allege in their Petition that

Defendant was unjustly enriched because he failed to make mortgage payments, did not
work at the motel, and did not provide additional cash or labor past his original $45,000
contribution, but that he had a joint duty to pay the notes and mortgages on the property by
executing documents with Plaintiff Yogesh in 2003. See Docket No. 35, pp. 4-5, ¶¶ 5-9.
Defendant again contends Plaintiffs have failed to state a claim because Plaintiff Yogesh
and Defendant were joint debtors, equally liable for the mortgage(s)e. Additionally,
Defendant asserts that Plaintiffs failed to allege that Defendant was enriched or benefited
by the monies from running the motel and that Plaintiffs’ grievances arise from unidentified
terms of a partnership. The Court agrees with Defendant.
As described in its previous Order, Oklahoma law states that, “[t]o recover for unjust
enrichment ‘there must be enrichment to another coupled with a resulting injustice.’”
Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1030 (10th Cir. 2007) (quoting
Teel v. Public Serv. Co. of Okla., 1985 OK 112, ¶ 23, 767 P.2d 391, 398 (Okla. 1985)
(superseded by statute on other grounds). Unjust enrichment generally consists of “(1) the
unjust (2) retention of (3) a benefit received (4) at the expense of another.” Oklahoma
Dep’t of Sec. ex rel. Faught v. Blair, 2010 OK 16, ¶ 22, 231 P.3d 645, 658, as corrected
(Apr. 6, 2010). “‘[U]njust enrichment arises not only where an expenditure by one person
adds to the property of another, but also where the expenditure saves the other from expense
or loss. One is not unjustly enriched, however, by retaining benefits involuntarily acquired
which law and equity give him absolutely without any obligation on his part to make
restitution.’” City of Tulsa v. Bank of Oklahoma, N.A., 2011 OK 83, ¶ 19, 280 P.3d 314,
319 (quoting McBride v. Bridges, 1950 OK 25, ¶ 8, 215 P.2d 830, 832). Plaintiffs contend
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that the unjust enrichment here was allowing Defendant to claim a one-half interest in a
motel having made only a loan which was later repaid and receiving the benefit of
Plaintiff’s operation of the motel without his contribution. Plaintiffs’ Amended Complaint
alleges Defendant was unjustly enriched “for his claimed partnership interest,” Docket No.
35, p. 5, ¶ 7, but does not allege what partnership Defendant is claiming other than to allege
that he was a co-signator of the mortgages and notes.

Instead, Defendant’s unjust

enrichment claim appears to seek to impose “a joint duty to pay the notes and mortgages
since he was a party” to them. Id. ¶ 9. This is a claim grounded in contract, not equity.
Having been given two chances to properly allege a claim for unjust enrichment,
the Court finds further amendment would be futile, and that Plaintiffs’ Second Cause of
Action should therefore be dismissed with prejudice. See Brody v. Bruner as trustee of
Bruner Fam. Tr., 2024 WL 1912555, at *7 (10th Cir. May 1, 2024) (quoting, inter alia
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with
prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and
granting leave to amend would be futile.”) and Anderson v. Suiters, 499 F.3d 1228, 1238
(10th Cir. 2007) (“A proposed amendment is futile if the complaint, as amended, would be
subject to dismissal.”) (quotations omitted)).
Accounting. Next, Defendant requests the third cause of action, accounting, be
dismissed. In the Amended Complaint, Plaintiffs again allege that Defendant and Plaintiff
Yogesh agreed that their mother with live with Plaintiffs in Oklahoma but that Defendant
would collect their mother’s Social Security benefits. Plaintiffs further allege that these
benefits were to be split equally by Defendant and Plaintiff Yogesh upon their mother’s
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death but that the monies went exclusively to Defendant, who only on a “hit or miss basis”
sent money when requested, and never shared the monies with Plaintiffs. They therefore
demand an accounting. Docket No. 35, pp. 3, 6-7, ¶¶ 10-16. Defendant contends Plaintiffs
have failed to allege any standing or entitlement to Social Security benefits in their
mother’s name. Plaintiffs respond only that Defendant had a fiduciary duty to use their
mother’s Social Security benefits for her benefit and he did not share those proceeds as she
directed, and therefore Defendant should have to account for the proceeds. Defendant
further contends that any fiduciary relationship, if it existed, was between Defendant and
his mother, not Defendant and Plaintiffs.
In 2016, “the Oklahoma Court of Civil Appeals endeavored to define accounting
under Oklahoma law, and ultimately reasoned that three—and possibly four—separate
types of accounting exist under Oklahoma law. The first three constitute causes of action,
and include: (1) accounting at law; (2) equitable accounting; and (3) equity jurisdiction
over an accounting at law. The Court also found a ‘possible fourth category of equitable
accounting’ as ‘a remedy when a plaintiff has prevailed on a theory of recovery.’” Cell
Energy, LLC v. Devon Energy Prod. Co., L.P., 2016 WL 9408580, at *4 (D.N.M. Oct. 11,
2016) (citing Margaret Blair Tr. v. Blair, 2016 OK CIV APP 47, ¶¶ 16-22, 378 P.3d 65,
72). Here, Plaintiffs still have not clarified the type of accounting they are seeking, but
appear to allege an accounting at law, as they assert in their response a “legally protected
interest” in an accounting based on an oral contract between Plaintiffs and Defendant,
although it is not entirely clear, and Plaintiffs cite no case law (legal or equitable) in support
of this cause of action.
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To the extent Plaintiffs plead a separate legal claim for an accounting, the Court
again agrees with Defendant that Plaintiffs fail to state a claim. “If a contract states a right
to an accounting, or a fiduciary duty creates such a right, its enforcement is initially a matter
of tort or contract law, and not an equitable matter. . . . A failure to account pursuant to a
legal duty is pursued as a breach of duty, and is not an equitable matter at all.” Margaret
Blair Tr. v. Blair, 2016 OK CIV APP 47, ¶¶ 17-18, 378 P.3d 65, 72; see also Mills v. Mills,
1973 OK 74, ¶ 25, 512 P.2d 143, 149 (“It is axiomatic that an accounting action is based
upon a relationship created by contract or supplied by a fiduciary relation (and thus created
by law) between the parties.”). Plaintiffs’ allegation of an oral contract makes no mention
of an agreement containing a right to an accounting, nor a fiduciary duty creating such a
right between Plaintiffs 3 and Defendant. See, e.g., Cell Energy, 2016 WL 9408580, at *5
(“For the Devon Subsidiaries to competently plead an accounting at law or invoke this
Court's equity jurisdiction over an accounting at law, the Devon Subsidiaries must first
establish that a contract ‘states a right to an accounting,’ or that ‘a fiduciary duty creates
such a right.’ Here, however, neither party has pleaded a contractual right to an accounting,
nor does the contract attached to Cell Energy's Complaint evince such a right.”) (citing
Margaret Blair Trust, 2016 OK CIV APP 47, ¶ 17, 378 P.3d at 72). Accordingly, Plaintiffs
have not sufficiently alleged a legal right to an accounting.
As outlined in the previous Order, “[e]quitable accounting, by contrast [to a legal
accounting], is available ‘where the plaintiff lacks a legal right to an accounting, but an

3

Although neither of the parties address it, the Court further notes that the Amended Complaint
contains no allegations as to any agreement between Plaintiff Reshma Ganjawala and Defendant.
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accounting is the only available means to an adequate remedy.’” CMI Roadbuilding, Inc.
v. Specsys, Inc., 2021 WL 2189222, at *5 n.8 (W.D. Okla. May 28, 2021) (quoting
Margaret Blair Tr., 2016 OK CIV APP 47, ¶ 19, 378 P.3d at 73. “[A] plaintiff seeking an
equitable accounting in Oklahoma must prove: ‘(1) a confidential relationship; (2) the
defendant had control over another’s property and records concerning the property;
(3) after a demand for an accounting defendant did not account or return the property; and
(4) there was no adequate remedy at law.’” Cell Energy, 2016 WL 9408580, at *6 (D.N.M.
Oct. 11, 2016) (quoting Howell Petroleum Corp. v. Leben Oil Corp., 976 F.2d 614, 620
(10th Cir. 1992)). In such cases, the Tenth Circuit instructs that a Plaintiff is “required to
show a balance was due in order to establish a right to an accounting.” Howell Petroleum,
976 F.2d at 620. Plaintiffs again fail to meet this standard. While Plaintiffs now allege
that they have no other remedy available at law, see Docket No. 35, p. 6, ¶ 12, there is no
allegation regarding a confidential, or fiduciary, relationship. Sellers v. Sellers, 1967 OK
34, ¶¶ 20-22, 428 P.2d 230, 236 (equating fiduciary and confidential relationships in
analysis). The Court therefore finds further amendment of Plaintiffs’ Third Cause of
Action would be futile and that Plaintiffs’ Third Cause of Action should therefore be
dismissed with prejudice. See Brody, 2024 WL 1912555, at *7.
CONCLUSION
Accordingly, IT IS ORDERED that Defendant’s Motion to Dismiss Plaintiffs’
Amended Complaint with Brief in Support [Docket No. 38] is hereby GRANTED. The
Second and Third Causes of Action in Plaintiffs’ Amended Complaint are hereby
dismissed with prejudice. Plaintiffs are granted leave to file a Second Amended Complaint
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ONLY as to the First Cause of Action. Any such Second Amended Complaint shall be
filed within fourteen days from the date of this order and fully comply with the Federal
Rules of Civil Procedure and the local rules of this Court, including, but not limited to,
Fed. R. Civ. P. 8(a) and 10(b). Plaintiffs are further instructed to attach as Exhibit 1 a
redline version to any Second Amended Complaint, reflecting both additions and
deletions. Failure to comply with the Court’s instructions as to proper submission of the
Second Amended Complaint will result in any Second Amended Complaint being stricken
without further notice and the case dismissed with prejudice. No further amendments shall
be granted. Finally, Defendant’s Motion to Strike [Docket No. 39] and Plaintiffs’ Motion
to Amend Plaintiffs’ Amended Complaint [Docket No. 42] are hereby DENIED AS
MOOT.
DATED this 3rd day of June, 2024.

_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE

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