Dauven et al v. U.S. Bancorp et al

Filing 168

ORDER: The Court ADOPTS as modified Magistrate Judge AcostasFindings and Recommendation 140 . Plaintiffs may file a Second Amended Complaint for review by Magistrate Judge Acosta no later than 7/22/2014 to cure the deficiencies in certain claims as specifically identified and permitted by this Order. See attached 22 page Order for full text. Signed on 06/30/2014 by Judge Anna J. Brown. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

THEODORE (TED) E. DAUVEN,
BARBARA G. DAUVEN, AND
CHRISTIANA C. DAUVEN,
Plaintiffs,
v.
U.S. BANCORP; U.S. BANK
NATIONAL ASSOCIATION, as
trustee for MASTR ASSET
BACKED SECURITIES TRUST,
2006-WMC2; WELLS FARGO AND
COMPANY; IAN REEKIE; REEKIE
PROPERTIES, LLC; STATE FARM
MUTUAL AUTOMOBILE INSURANCE
CO.; J.R. OLEYAR; DANIEL
STAUFFER; SHAWNA STAUFFER;
RANDALL STAUFFER; CHRISTINA
STAUFFER; ELIZABETH BALKOVIC
ALLAN; TERESA BALKOVIC; MARY
MARGARET WEIBEL; SAMUEL
TAYLOR V; ANNIE MECKLEY
TENNESON; DENISE FRICKE; and
KINGSLEY W. CLICK,
Defendants.
1 - ORDER

3:13-CV-00844-AC
ORDER

BROWN, Judge.
Magistrate Judge John V. Acosta issued Findings and
Recommendation (#140) on March 19, 2014, in which he recommends
the Court grant Defendants’ Motions to Dismiss (#38, #40, #43,
#52, #54, #73, #95, #103) and grant Defendant State Farm Mutual
Automobile Insurance Company’s Motion for Summary Judgment
(#120).

The matter is now before this Court pursuant to 28

U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
Plaintiffs filed timely Objections on April 18, 2014.
When any party objects to any portion of the Magistrate
Judge's Findings and Recommendation, the district court must make
a de novo determination of that portion of the Magistrate Judge's
report.

28 U.S.C. § 636(b)(1).

See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc).

MOTION (#38) TO DISMISS OF DEFENDANT ANNIE MECKLEY TENNESON
Magistrate Judge Acosta recommends granting Defendant
Tenneson’s Motion to Dismiss and dismissing with prejudice
Plaintiffs’ Claims One, Two, and Three against Tenneson on the
ground that Plaintiffs’ Amended Complaint does not contain any
allegations that Plaintiffs are members of a protected class who
suffer from invidious discrimination or that Tenneson acted with
any class-based animus, and, therefore, Plaintiffs fail to state
2 - ORDER

a claim against Tenneson for violation of 42 U.S.C. § 1985(2) or
(3).1
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Tenneson’s Motion to Dismiss and
stated at oral argument.

This Court has carefully considered

Plaintiffs’ Objections and concludes they do not provide a basis
to modify the substantive legal analysis of the Findings and
Recommendation.

The Court, however, notes the Ninth Circuit has

made clear that when a plaintiff fails to state a claim, “[l]eave
to amend should be granted unless the pleading ‘could not
possibly be cured by the allegation of other facts,’ and should
be granted more liberally to pro se plaintiffs.”

Alcala v. Rios,

434 F. App’x 668, 670 (9th Cir. 2011)(quoting Ramirez v. Galaza,
334 F.3d 850, 861 (9th Cir. 2003)).

It is unclear on the face of

the Amended Complaint that Plaintiffs could not in good faith
allege they are members of a protected class who suffer from
invidious discrimination or that Defendant Tenneson acted with
any class-based animus.

The Court, therefore, declines to adopt

the Magistrate Judge’s recommendation to dismiss with prejudice
Plaintiffs’ claims against Tenneson.

1

The Magistrate Judge
although Plaintiffs did not
allege Defendants violated,
makes clear that Plaintiffs
3 - ORDER

found, and this Court agrees, that
specify which clause of § 1985 they
the context of the Amended Complaint
are not proceeding under § 1985(1).

Accordingly, the Court GRANTS Defendant Tenneson’s Motion
(#38) to Dismiss and DISMISSES without prejudice Plaintiffs’
Claims One, Two, and Three against Defendant Tenneson.

MOTION (#40) TO DISMISS OF DEFENDANT MARY MARGARET WEIBEL
Magistrate Judge Acosta recommends granting Defendant
Weibel’s Motion to Dismiss and dismissing with prejudice
Plaintiffs’ Claims One, Two, and Three against Weibel on the
ground that Plaintiffs’ Amended Complaint does not contain any
allegations that Plaintiffs are members of a protected class who
suffer from invidious discrimination or that Weibel acted with
any class-based animus, and, therefore, Plaintiffs fail to state
a claim for violation of 42 U.S.C. § 1985(2) or (3).
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Weibel’s Motion to Dismiss and
stated at oral argument.

This Court has carefully considered

Plaintiffs’ Objections and concludes they do not provide a basis
to modify the substantive legal analysis of the Findings and
Recommendation.

As noted, however, when a plaintiff fails to

state a claim, “[l]eave to amend should be granted unless the
pleading could not possibly be cured by the allegation of other
facts, and should be granted more liberally to pro se
plaintiffs.”

Alcala, 434 F. App’x at 670 (quotation omitted).

It is unclear on the face of the Amended Complaint that
4 - ORDER

Plaintiffs could not in good faith allege they are members of a
protected class who suffer from invidious discrimination or that
Weibel acted with any class-based animus.

The Court, therefore,

declines to adopt the Magistrate Judge’s recommendation to
dismiss with prejudice Plaintiffs’ claims against Weibel.
Accordingly, the Court GRANTS Defendant Weibel’s Motion
(#40) to Dismiss and DISMISSES without prejudice Plaintiffs’
Claims One, Two, and Three against Defendant Weibel.

MOTION (#43) TO DISMISS OF DEFENDANTS IAN REEKIE
AND REEKIE PROPERTIES, LLC
Magistrate Judge Acosta recommends granting the Motion to
Dismiss of Defendants Ian Reekie and Reekie Properties, LLC
(Reekie Defendants) and dismissing with prejudice Plaintiffs’
Claims One, Two, and Three against Reekie Defendants on the
ground that Plaintiffs’ Amended Complaint does not contain any
allegations that Plaintiffs are members of a protected class who
suffer from invidious discrimination or that Reekie Defendants
acted with any class-based animus, and, therefore, Plaintiffs
fail to state a claim for violation of 42 U.S.C. § 1985(2) or
(3).
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Reekie Defendants’ Motion to
Dismiss and stated at oral argument.

5 - ORDER

This Court has carefully

considered Plaintiffs’ Objections and concludes they do not
provide a basis to modify the substantive legal analysis of the
Findings and Recommendation.

As noted, however, when a plaintiff

fails to state a claim, “[l]eave to amend should be granted
unless the pleading could not possibly be cured by the allegation
of other facts, and should be granted more liberally to pro se
plaintiffs.”

Alcala, 434 F. App’x at 670 (quotation omitted).

It is unclear on the face of the Amended Complaint that
Plaintiffs could not in good faith allege they are members of a
protected class who suffer from invidious discrimination or that
Reekie Defendants acted with any class-based animus.

The Court,

therefore, declines to adopt the Magistrate Judge’s
recommendation to dismiss with prejudice Plaintiffs’ claims
against Reekie Defendants.
Accordingly, the Court GRANTS Reekie Defendants’ Motion
(#43) to Dismiss and DISMISSES without prejudice Plaintiffs’
Claims One, Two, and Three against Reekie Defendants.

MOTION (#52) TO DISMISS OF DEFENDANT RANDALL STAUFFER
Magistrate Judge Acosta recommends granting Defendant
Randall Stauffer’s Motion to Dismiss and dismissing with
prejudice Plaintiffs’ Claims One, Two, Three, and Twelve against
Randall Stauffer.
I.

Plaintiffs’ Claims One, Two, and Three

6 - ORDER

The Magistrate Judge recommends dismissing with prejudice
Plaintiffs’ Claims One, Two, and Three against Randall Stauffer
on the ground that Plaintiffs’ Amended Complaint does not contain
any allegations that Plaintiffs are members of a protected class
who suffer from invidious discrimination or that Randall Stauffer
acted with any class-based animus, and, therefore, Plaintiffs
fail to state a claim for violation of 42 U.S.C. § 1985(2) or
(3).
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Randall Stauffer’s Motion to
Dismiss and stated at oral argument.

This Court has carefully

considered Plaintiffs’ Objections and concludes they do not
provide a basis to modify the substantive legal analysis of the
Findings and Recommendation.
II.

Plaintiffs’ Claim Twelve
The Magistrate Judge recommends dismissing with prejudice

Plaintiffs’ Claim Twelve against Randall Stauffer on the ground
that Plaintiffs have not stated a claim against Randall Stauffer
under 42 U.S.C. § 1983 for violation of Plaintiffs’
constitutional rights because Plaintiffs do not allege in their
Amended Complaint that Randall Stauffer was a state actor, was
entwined with state actors, conspired with state actors, or that
his conduct is attributable to the State.
In their Objections Plaintiffs reiterate the arguments

7 - ORDER

contained in their Response to Randall Stauffer’s Motion to
Dismiss and stated at oral argument.

This Court has carefully

considered Plaintiffs’ Objections and concludes they do not
provide a basis to modify the substantive legal analysis of the
Findings and Recommendation.
III. Dismissal Without Prejudice
As noted, when a plaintiff fails to state a claim, “[l]eave
to amend should be granted unless the pleading could not possibly
be cured by the allegation of other facts, and should be granted
more liberally to pro se plaintiffs.”
670 (quotation omitted).

Alcala, 434 F. App’x at

It is unclear on the face of the

Amended Complaint that Plaintiffs could not in good faith allege
they are members of a protected class who suffer from invidious
discrimination; that Randall Stauffer acted with any class-based
animus; or that Randall Stauffer was a state actor, was entwined
with state actors, conspired with state actors, or that his
conduct is attributable to the State.

The Court, therefore,

declines to adopt the Magistrate Judge’s recommendation to
dismiss

with prejudice Plaintiffs’ claims against Randall

Stauffer.
In summary, the Court GRANTS Defendant Randall Stauffer’s
Motion (#52) to Dismiss and DISMISSES without prejudice
Plaintiffs’ Claims One, Two, Three, and Twelve against Randall
Stauffer.
8 - ORDER

MOTION (#54) TO DISMISS OF DEFENDANT CHRISTINA STAUFFER
Magistrate Judge Acosta recommends granting Defendant
Christina Stauffer’s Motion to Dismiss and dismissing with
prejudice Plaintiffs’ Claims One and Two against Christina
Stauffer and dismissing without prejudice Plaintiffs' Claims Ten
and Eleven against Christina Stauffer.
I.

Plaintiffs’ Claims One and Two
The Magistrate Judge recommends dismissing with prejudice

Plaintiffs’ Claims One and Two against Christina Stauffer on the
ground that Plaintiffs’ Amended Complaint does not contain any
allegations that Plaintiffs are members of a protected class who
suffer from invidious discrimination or that Christina Stauffer
acted with any class-based animus, and, therefore, Plaintiffs
fail to state a claim for violation of 42 U.S.C. § 1985(2) or
(3).
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Christina Stauffer’s Motion to
Dismiss and stated at oral argument.

This Court has carefully

considered Plaintiffs’ Objections and concludes they do not
provide a basis to modify the substantive legal analysis of the
Findings and Recommendation.
As noted, however, when a plaintiff fails to state a claim,
“[l]eave to amend should be granted unless the pleading could not
9 - ORDER

possibly be cured by the allegation of other facts, and should be
granted more liberally to pro se plaintiffs.”
App’x at 670 (quotation omitted).

Alcala, 434 F.

It is unclear on the face of

the Amended Complaint that Plaintiffs could not in good faith
allege they are members of a protected class who suffer from
invidious discrimination or that Christina Stauffer acted with
any class-based animus.

The Court, therefore, declines to adopt

the Magistrate Judge’s recommendation to dismiss with prejudice
Plaintiffs’ Claims One and Two against Christina Stauffer.
II.

Plaintiffs’ Claims Ten and Eleven
The Magistrate Judge recommends dismissing without

prejudice Plaintiffs’ Claims Ten and Eleven against Defendant
Christina Stauffer on the ground that Plaintiffs fail to state a
claim for conspiracy and for constructive trust.
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Christina Stauffer’s Motion to
Dismiss and stated at oral argument.

This Court has carefully

considered Plaintiffs’ Objections and concludes they do not
provide a basis to modify the substantive legal analysis of the
Findings and Recommendation.

The Court also has reviewed the

pertinent portions of the record de novo and does not find any
error in the Magistrate Judge's Findings and Recommendation with
respect to dismissing Plaintiffs’ Claims Ten and Eleven against
Christina Stauffer.

10 - ORDER

In summary, the Court GRANTS Defendant Christina Stauffer’s
Motion (#54) to Dismiss and DISMISSES without prejudice
Plaintiffs’ Claims One, Two, Ten, and Eleven against Christina
Stauffer.

MOTION (#73) TO DISMISS OF DEFENDANTS U.S. BANCORP, U.S. BANK
NATIONAL ASSOCIATION, AND WELLS FARGO AND COMPANY
Magistrate Judge Acosta recommends granting the Motion to
Dismiss of Defendants U.S. Bancorp, U.S. Bank National
Association, and Wells Fargo and Company (Bank Defendants) and
dismissing with prejudice Plaintiffs’ Claims One, Two, Three, and
Nine and dismissing without prejudice Plaintiffs' Claim Thirteen
against Bank Defendants.
I.

Plaintiffs’ Claims One, Two, and Three
The Magistrate Judge recommends dismissing with prejudice

Plaintiffs’ Claims One, Two, and Three against Bank Defendants on
the ground that Plaintiffs’ Amended Complaint does not contain
any allegations that Plaintiffs are members of a protected class
who suffer from invidious discrimination or that Bank Defendants
acted with any class-based animus, and, therefore, Plaintiffs
fail to state a claim for violation of 42 U.S.C. § 1985(2) or
(3).
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Bank Defendant’s Motion to Dismiss

11 - ORDER

and stated at oral argument.

This Court has carefully considered

Plaintiffs’ Objections and concludes they do not provide a basis
to modify the substantive legal analysis of the Findings and
Recommendation.
As noted, however, when a plaintiff fails to state a claim,
“[l]eave to amend should be granted unless the pleading could not
possibly be cured by the allegation of other facts, and should be
granted more liberally to pro se plaintiffs.”
App’x at 670 (quotation omitted).

Alcala, 434 F.

It is unclear on the face of

the Amended Complaint that Plaintiffs could not in good faith
allege they are members of a protected class who suffer from
invidious discrimination or that Bank Defendants acted with any
class-based animus.

The Court, therefore, declines to adopt the

Magistrate Judge’s recommendation to dismiss with prejudice
Plaintiffs’ Claims One, Two, and Three against Bank Defendants.
II.

Plaintiffs’ Claim Nine
The Magistrate Judge recommends dismissing with prejudice

Plaintiffs’ Claim Nine against Bank Defendants on the ground that
it is barred by the doctrine of claim preclusion.
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Bank Defendant’s Motion to Dismiss
and stated at oral argument.

This Court has carefully considered

Plaintiffs’ Objections and concludes they do not provide a basis
to modify the substantive legal analysis of the Findings and

12 - ORDER

Recommendation.

The Court also has reviewed the pertinent

portions of the record de novo and does not find any error in the
Magistrate Judge's Findings and Recommendation with respect to
dismissing with prejudice Plaintiffs’ Claim Nine against Bank
Defendants.
III. Plaintiffs’ Claim Thirteen
The Magistrate Judge recommends dismissing without prejudice
Plaintiffs’ Claim Thirteen on the ground that Plaintiffs fail to
allege Bank Defendants exercised dominion or control over
Plaintiffs’ personal property, and, therefore, Plaintiffs fail to
state a claim for conversion.
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Bank Defendant’s Motion to Dismiss
and stated at oral argument.

This Court has carefully considered

Plaintiffs’ Objections and concludes they do not provide a basis
to modify the substantive legal analysis of the Findings and
Recommendation.

The Court also has reviewed the pertinent

portions of the record de novo and does not find any error in the
Magistrate Judge's Findings and Recommendation with respect to
dismissing Plaintiffs’ Claim Thirteen against Bank Defendants.
Accordingly, the Court GRANTS Bank Defendants’ Motion (#73)
to Dismiss; DISMISSES without prejudice Plaintiffs’ Claims One,
Two, Three, and Thirteen against Bank Defendants; and DISMISSES
with prejudice Plaintiffs’ Claim Nine against Bank Defendants.
13 - ORDER

MOTION (#95) TO DISMISS OF DEFENDANTS
J.R. OLEYAR AND KINGSLEY CLICK
Magistrate Judge Acosta recommends granting the Motion to
Dismiss of Defendants J.R. Oleyar and Kingsley Click (State
Defendants), dismissing with prejudice Plaintiffs’ Claims One
through Six against Oleyar, and dismissing with prejudice
Plaintiffs’ Claims Seven and Eight against Click.
I.

Plaintiffs’ Claims One, Two, and Three
The Magistrate Judge recommends dismissing with prejudice

Plaintiffs’ Claims One, Two, and Three against Defendant Oleyar
on the ground that Plaintiffs’ Amended Complaint does not contain
any allegations that Plaintiffs are members of a protected class
who suffer from invidious discrimination or that Oleyar acted
with any class-based animus, and, therefore, Plaintiffs fail to
state a claim for violation of 42 U.S.C. § 1985(2) or (3).
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Oleyar’s Motion to Dismiss and
stated at oral argument.

This Court has carefully considered

Plaintiffs’ Objections and concludes they do not provide a basis
to modify the substantive legal analysis of the Findings and
Recommendation.
As noted, however, when a plaintiff fails to state a claim,
“[l]eave to amend should be granted unless the pleading could not

14 - ORDER

possibly be cured by the allegation of other facts, and should be
granted more liberally to pro se plaintiffs.”
App’x at 670 (quotation omitted).

Alcala, 434 F.

It is unclear on the face of

the Amended Complaint that Plaintiffs could not in good faith
allege they are members of a protected class who suffer from
invidious discrimination or that Oleyar acted with any classbased animus.

The Court, therefore, declines to adopt the

Magistrate Judge’s recommendation to dismiss with prejudice
Plaintiffs’ Claims One, Two, and Three against Oleyar.
II.

Plaintiffs’ Claims Four, Five, and Six
The Magistrate Judge recommends dismissing with prejudice

Plaintiffs’ Claims Four, Five, and Six against Oleyar on the
ground that Plaintiffs’ Claims Four, Five, and Six against Oleyar
are barred by the Eleventh Amendment.
In their Objections Plaintiffs reiterate the arguments
contained in their Response to State Defendants’ Motion to
Dismiss and stated at oral argument.

This Court has carefully

considered Plaintiffs’ Objections and concludes they do not
provide a basis to modify the substantive legal analysis of the
Findings and Recommendation.
The Ninth Circuit has made clear, however, that "the
Eleventh Amendment . . . only bars [actions for money damages]
against [state officials in their official capacity] made in
federal court.

15 - ORDER

Therefore, . . . claims [barred by the Eleventh

Amendment] should [be] dismissed without prejudice.”

Grosz v.

Lassen Cmty Coll. Dist., 360 F. App’x 795, 798 (9th Cir. 2009).
The Court, therefore, declines to adopt the Magistrate Judge’s
recommendation to dismiss with prejudice Plaintiffs’ Claims Four,
Five, and Six against Defendant Oleyar.
III. Plaintiffs’ Claims Seven and Eight
The Magistrate Judge recommends dismissing with prejudice
Plaintiffs’ Claims Seven and Eight against Defendant Click on the
grounds that those claims are barred by the applicable statute of
limitations and that Click may not be held liable in respondeat
superior under § 1983 for the actions of her employees.
In their Objections Plaintiffs reiterate the arguments
contained in their Response to State Defendants’ Motion to
Dismiss and stated at oral argument.

This Court has carefully

considered Plaintiffs’ Objections and concludes they do not
provide a basis to modify the substantive legal analysis of the
Findings and Recommendation.

The Court also has reviewed the

pertinent portions of the record de novo and does not find any
error in the Magistrate Judge's Findings and Recommendation with
respect to dismissing Plaintiffs’ Claim.
Accordingly, the Court GRANTS State Defendants’ Motion (#95)
to Dismiss; DISMISSES without prejudice Plaintiffs’ Claims One
through Six against Oleyar; and DISMISSES with prejudice
Plaintiffs’ Claims Seven and Eight against Defendant Click.
16 - ORDER

MOTION (#103) TO DISMISS OF DEFENDANT SAMUEL TAYLOR
Magistrate Judge Acosta recommends granting Defendant
Taylor’s Motion to Dismiss and dismissing with prejudice
Plaintiffs’ Claims One, Two, and Three against Taylor on the
ground that Plaintiffs’ Amended Complaint does not contain any
allegations that Plaintiffs are members of a protected class who
suffer from invidious discrimination or that Taylor acted with
any class-based animus, and, therefore, Plaintiffs fail to state
a claim for violation of 42 U.S.C. § 1985(2) or (3).
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Taylor’s Motion to Dismiss and
stated at oral argument.

This Court has carefully considered

Plaintiffs’ Objections and concludes they do not provide a basis
to modify the substantive legal analysis of the Findings and
Recommendation.

As noted, however, when a plaintiff fails to

state a claim, “[l]eave to amend should be granted unless the
pleading could not possibly be cured by the allegation of other
facts, and should be granted more liberally to pro se
plaintiffs.”

Alcala, 434 F. App’x at 670 (quotation omitted).

It is unclear on the face of the Amended Complaint that
Plaintiffs could not in good faith allege they are members of a
protected class who suffer from invidious discrimination or that
Defendant acted with any class-based animus.

17 - ORDER

The Court,

therefore, declines to adopt the Magistrate Judge’s
recommendation to dismiss with prejudice Plaintiffs’ claims
against Taylor.
Accordingly, the Court GRANTS Defendant Taylor’s Motion
(#103) to Dismiss and DISMISSES without prejudice Plaintiffs’
Claims One, Two, and Three against Defendant Taylor.

MOTION (#120) OF DEFENDANT STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY FOR SUMMARY JUDGMENT
The Magistrate Judge recommends granting Defendant State
Farm’s Motion for Summary Judgment and dismissing with prejudice
Plaintiffs’ Claims One and Three against State Farm on the ground
that Plaintiffs failed to allege and/or to submit evidence in
response to State Farm’s Motion for Summary Judgment that State
Farm acted with any racial or class-based discriminatory animus,
and, therefore, Plaintiffs fail to plead or to prove a claim
against State Farm for violation of 42 U.S.C. § 1985(2) or (3).
In their Objections Plaintiffs reiterate the arguments
contained in their Response to State Defendants’ Motion for
Summary Judgment and stated at oral argument

Plaintiffs did not

allege or produce evidence in their Response, at oral argument,
or in their Objections that State Farm acted with any racial or
class-based discriminatory animus.

This Court has carefully

considered Plaintiffs’ Objections and concludes they do not

18 - ORDER

provide a basis to modify the substantive legal analysis of the
Findings and Recommendation.

The Court also has reviewed the

pertinent portions of the record de novo and does not find any
error in the Magistrate Judge's Findings and Recommendation with
respect to dismissing Plaintiffs’ Claim.
Accordingly, the Court GRANTS State Farm’s Motion (#120) for
Summary Judgment and DISMISSES with prejudice Plaintiffs’ Claims
One and Three against Defendant State Farm.

CONCLUSION
The Court ADOPTS as modified Magistrate Judge Acosta’s
Findings and Recommendation (#140) and, accordingly,
1.

GRANTS Defendant Ann Meckley Tenneson’s Motion (#38) to
Dismiss and DISMISSES without prejudice Plaintiffs’
Claims One, Two, and Three against Defendant Tenneson;

2.

GRANTS Defendant Mary Weibel’s Motion (#40) to Dismiss
and DISMISSES without prejudice Plaintiffs’ Claims One,
Two, and Three against Defendant Weibel;

3.

GRANTS Reekie Defendants’ Motion (#43) to Dismiss of
Defendants and DISMISSES without prejudice Plaintiffs’
Claims One, Two, and Three against Reekie Defendants;

4.

GRANTS Defendant Randall Stauffer’s Motion (#52) to
Dismiss and DISMISSES without prejudice Plaintiffs’

19 - ORDER

Claims One, Two, Three, and Twelve against Defendant
Randall Stauffer;
5.

GRANTS Defendant Christina Stauffer’s Motion (#54) to
Dismiss and DISMISSES without prejudice Plaintiffs’
Claims One, Two, Ten, and Eleven against Defendant
Christina Stauffer;

6.

GRANTS Bank Defendants’ Motion (#73) to Dismiss;
DISMISSES without prejudice Plaintiffs’ Claims One,
Two, Three, and Thirteen against Bank Defendants; and
DISMISSES with prejudice Plaintiffs’ Claim Nine against
Bank Defendants;

7.

GRANTS State Defendants’ Motion (#95) to Dismiss;
DISMISSES without prejudice Plaintiffs’ Claims One
through Six against Defendant Oleyar; and DISMISSES
with prejudice Plaintiffs’ Claims Seven and Eight
against Defendant Click;

8.

GRANTS Defendant Taylor’s Motion (#103) to Dismiss and
DISMISSES without prejudice Plaintiffs’ Claims One,
Two, and Three against Defendant Taylor; and

9.

GRANTS Defendant State Farm’s Motion (#120) for Summary
Judgment and DISMISSES with prejudice Plaintiffs’
Claims One and Three against Defendant State Farm.

Accordingly, Plaintiffs may file a Second Amended Complaint

20 - ORDER

for review by Magistrate Judge Acosta no later than July 22,
2014, to the extent they can in good faith:

1.

Cure the deficiencies in Claims One and Two only
against Bank Defendants; Reekie Defendants; and
Defendants Oleyar, Randall Stauffer, Christina
Stauffer, Weibel, Taylor, and Tenneson;

2.

Cure the deficiencies in Claim Three only against Bank
Defendants; Reekie Defendants; and Defendants Oleyar,
Randall Stauffer, Weibel, Taylor, and Tenneson;

3.

Cure the deficiencies in Claims Four, Five, and Six
only against Defendant Oleyar;

4.

Cure the deficiencies in Claims Ten and Eleven only
against Defendant Christina Stauffer;

5.

Cure the deficiencies in Claim Twelve only against
Defendant Randall Stauffer; and

6.

Cure the deficiencies in Claim Thirteen only against
Bank Defendants.

Plaintiffs are not permitted to replead the following in
their Second Amended Complaint:
1.

Claims One and Two against Defendant State Farm,

2.

Claims Seven and Eight against Defendant Click, or

21 - ORDER

3.

Claim Nine against Bank Defendants.

IT IS SO ORDERED.
DATED this 30th day of June, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

22 - ORDER