Lorenz et al v. Deutsche Bank National Trust Company

Filing 74

OPINION and ORDER - Defendants' Motions to Dismiss Plaintiffs' Second Amended Complaint (Dkts. 60 , 61 , 62 , and 63 ) are GRANTED. Because Plaintiffs have failed to cure the deficiencies in their First Amended Complaint previo usly identified by the Court and because it is clear to the Court that these deficiencies cannot be cured by further amendment, this case is DISMISSED WITH PREJUDICE. Plaintiffs' Third Motion for Temporary Restraining Order (Dkt. 64 ) is DENIED AS MOOT. Signed on 10/5/2015 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CINDY KAY LORENZ and
DAVID BRYAN LORENZ,

Case No. 3:15-cv-680-SI
OPINION AND ORDER

Plaintiffs,
v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee for Morgan Stanley
ABS Capital I Inc. Trust 2006-HE4; LANE
POWELL PC; PILAR FRENCH; TERESA
SHILL; ROBERT E. MALONEY, JR.;
GREGORY P. DOLINAJEC;
NORTHWEST TRUSTEE SERVICES;
DECISION ONE MORTGAGE
COMPANY, LLC; MORTGAGE
ELECTRONIC REGISTRATION
COMPANY; WELLS FARGO BANK, NA;
and RCO LEGAL,
Defendants.
Michael H. Simon, District Judge.
Plaintiffs, appearing pro se, alleged in their First Amended Complaint seven claims for
relief against eleven Defendants, who then moved to dismiss. In an Opinion and Order, the Court
granted Defendants’ motions and allowed Plaintiffs leave to file a Second Amended Complaint.
Dkt. 57. Among other things, the Court explained in its Opinion and Order that if Plaintiffs chose
to file a Second Amended Complaint but failed to cure the deficiencies identified, the Court
would dismiss this case with prejudice and without leave to file a Third Amended Complaint. On
August 13, 2015, Plaintiffs timely filed their Second Amended Complaint, alleging the following
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six claims: (1) Section 1962(a) of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1962(a); (2) Section 1962(c) of RICO, 18 U.S.C. § 1962(c); (3) breach of
the implied covenant of good faith and fair dealing; (4) fraud; (5) unjust enrichment; and
(6) unfair and deceptive business practices. Dkt. 59. Defendants move to dismiss all claims on
numerous grounds. Dkts. 60, 61, 62, and 63. Because Plaintiffs have failed to cure the
deficiencies in their First Amended Complaint previously identified by the Court and because it
is clear to the Court that these deficiencies cannot be cured by further amendment, Defendants’
motions to dismiss are GRANTED, and this case is DISMISSED WITH PREJUDICE.
STANDARDS
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual
allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d
992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint
“may not simply recite the elements of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from
the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office
Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the
plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009).
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A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
A court also must liberally construe the filings of a pro se plaintiff and afford the plaintiff
the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro
se litigant must be given leave to amend his or her complaint unless it is ‘absolutely clear that the
deficiencies of the complaint could not be cured by amendment.’” Karim-Panahi v. Los Angeles
Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987), superseded on other grounds by statute as stated in Lopez v. Smith, 203 F.3d
1122 (9th Cir. 2000)). Under Federal Rule of Civil Procedure 8(a)(2), however, every complaint
must contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” This standard “does not require ‘detailed factual allegations,’” but does demand “more
than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
BACKGROUND
This lawsuit arises from an Oregon state court proceeding involving both a contested
judicial foreclosure and a claim to enforce a settlement agreement. The action concerns real
property located at 17013 Northwest Johnson Road, Hillsboro, Oregon (the “Property”). In 2006,
Plaintiff David Lorenz borrowed $640,000 from Decision One Mortgage Company (the “Loan”).
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Plaintiff David Lorenz signed and delivered a promissory note in the amount of $640,000 (the
“Note”). As part of the same transaction, Plaintiff David Lorenz signed a Deed of Trust securing
the Property, dated February 21, 2006, and recorded on February 28, 2006, under Recorder No.
2006-036838 (“Deed of Trust”). Plaintiff Cindy Lorenz did not sign either the Note or the Deed
of Trust.
Approximately one year after obtaining the Loan, on or about February 26, 2007,
Plaintiff David Lorenz, the then-owner of the Property, filed a Chapter 7 bankruptcy case in
which he identified and admitted the Loan in his bankruptcy schedules and admitted that
Defendant Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS
Capital I Inc. Trust 2006-HE4 (“DBNTC”), through its servicer, Defendant Wells Fargo Bank,
NA d/b/a America’s Servicing Company, held a lien to secure the Loan on the Property. Plaintiff
David Lorenz was discharged from any personal liability on the Loan, and no payments have
been made on the Loan since January 2010.
After DBNTC began a non-judicial foreclosure following David Lorenz’s default,
Mr. Lorenz filed a lawsuit. In that action, Mr. Lorenz admitted that he entered into the Loan but
claimed that the non-judicial foreclosure was illegal because the Deed of Trust involved
Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”). This lawsuit was
dismissed by stipulation after DBNTC voluntarily agreed to rescind the notice of sale and pursue
an action for judicial foreclosure.
DBNTC then filed an action in Multnomah County Circuit Court (the “State Court”),
captioned as Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS
Capital I Inc. Trust 2006-HE4, its successors in interest and/or assigns v. David B. Lorenz,
Cindy K. Lorenz, et al., Case No. 1112-16883 (the “State Court Case”). In the State Court Case,

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DBNTC sought to judicially foreclose its Deed of Trust that secured the $640,000 loan made to
Mr. Lorenz in February 2006. Although Cindy Lorenz was never a party to the loan and never
signed the loan documents, she opposed the judicial foreclosure both as an “occupant” of the
Property and as an alleged owner of the Property (with her purported ownership being claimed
through a quitclaim deed from David Lorenz recorded in April 2013). DBNTC responded that it
had previously recorded a Notice of Lis Pendens on June 15, 2012, which under Or. Rev. Stat.
§ 93.740(2) voided the “quitclaim deed,” according to DBTNC.
During the State Court Case, DBNTC on the one hand, and David and Cindy Lorenz and
their adult son and daughter-in-law, Cody and Christy Walton (who were also occupants of the
Property at that time), entered into a settlement agreement under which the Lorenzes and the
Waltons agreed to stipulate to a judgment of foreclosure and to vacate the Property by August
25, 2013. According to DBNTC, the Lorenzes and the Waltons then breached the settlement
agreement, resulting in DBNTC amending its complaint and including a claim to enforce the
settlement agreement against the Lorenzes and the Waltons.
After hearing motions for summary judgment by DBNTC and considering opposition
filings and argument by the Lorenzes, the State Court issued detailed written decisions on
August 28 and 30, 2013. The State Court granted DBNTC’s motions for summary judgment to
foreclose its trust deed and separately to enforce the settlement agreement. The State Court found
DBNTC was entitled to foreclose its trust deed and that the Lorenzes and the Waltons had
breached the settlement agreement. The State Court also found that the Lorenzes twice made
untruthful representations to the State Court that they had produced all documents and emails
sent to them by their former attorney, which emails contradicted the Lorenzes’ claim that they
did not agree to the settlement. In the August 2013 order enforcing the settlement agreement, the

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State Court ordered the Lorenzes and the Waltons to vacate the Property not later than
November 1, 2013. Neither the Lorenzes nor the Waltons timely obeyed the State Court’s order,
although the Waltons have since vacated the property.
After these summary judgment orders in the State Court Case, the Lorenzes filed separate
bankruptcy cases, which were ultimately dismissed by the Bankruptcy Court for failure to pay
filing fees (David Lorenz) and failure to submit a confirmable plan among other things (Cindy
Lorenz). After dismissal of the two bankruptcy cases, the State Court entered a final general
judgment against David and Cindy Lorenz (as defendants in the State Court Case) on July 28,
2014 (the “General Judgment”).1 On the morning of the scheduled foreclosure sale, March 23,
2015, Plaintiffs jointly filed a new bankruptcy case, which again postponed the foreclosure sale.
On April 22, 2015, the Lorenzes, acting pro se, commenced this action in federal court
against Defendant DBNTC, seeking, among other things, a temporary restraining order to enjoin
the impending judicial foreclosure sale. Dkts. 1 and 4. On April 23, 2015, the Court heard
argument on Plaintiffs’ motion for a temporary restraining order and denied that motion. Dkt. 9.
The following day, April 24, 2015, the Court granted Plaintiffs’ motion for appointment of
counsel, Dkt. 10, and appointed an attorney for Plaintiffs. Dkt. 11. On April 29, 2015, the Court
received a request from the Lorenzes that the appointment of the attorney assigned to represent
them pro bono be terminated. Dkt. 16. At Plaintiffs’ request, the Court terminated the

1

According to DBNTC, although the General Judgment in the State Court Case states on its
face that it is limited to Cindy Lorenz, the Oregon Court of Appeals determined that the General
Judgment is a general judgment as to all defendants in the State Court Case (including both David
and Cindy Lorenz) and that the prior document entitled a General Judgment for Specific Performance
and Foreclosure of Trust Deed entered by the State Court on November 22, 2014, is incorporated into
the General Judgment against Cindy Lorenz. In recognition of this holding by the Oregon Court of
Appeals, DBNTC refers to the General Judgment entered July 10, 2014, with all incorporations,
simply as the “General Judgment.” This Court will do the same.
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appointment of Plaintiffs’ counsel. Dkt. 18. Since then, Plaintiffs have continued to represent
themselves in this matter.
Also on April 29, 2015, Plaintiffs, acting pro se, filed their First Amended Complaint. In
their amended pleading, Plaintiff added ten new Defendants, including, among others, the law
firm and two of its individual attorneys who have been representing DBNTC. Plaintiffs also
named as a Defendant the individual attorney who represented Plaintiffs in the State Court Case.
On May 1, 2015, Plaintiffs filed their second motion for a temporary restraining order.
Dkt. 20. On May 4, 2015, the Court denied that motion. Dkt. 23.
DBNTC obtained relief from the bankruptcy stay, and the foreclosure sale occurred on
May 4, 2015. According to DBNTC, in granting relief from the stay, the bankruptcy court found
that the Lorenzes had engaged in a scheme to hinder, delay, or defraud DBNTC that included the
bankruptcy filings by the Lorenzes. After the sale was concluded, the Lorenzes filed a motion to
dismiss the bankruptcy. The bankruptcy court dismissed the bankruptcy case upon the trustee’s
motion. On August 25, 2015, the Multnomah County Sheriff’s Office served a Writ of
Assistance on the Lorenzes, resulting in their eviction from the Property. The Lorenzes have
appealed the General Judgment in the State Court Case to the Oregon Court of Appeals, and that
appeal is pending.
On May 19, June 17, and June 22, 2015, Defendants filed motions to dismiss the First
Amended Complaint. Dkts. 31, 40, and 42. Several Defendants also requested that the Court take
judicial notice of the related bankruptcy cases, the State Court Case (including the order by the
Oregon Court of Appeals), and several public filings related to the Property and the judicial
foreclosure sale. Dkt. 45. On July 24, 2015, the Court granted Defendants’ motions. Dkt. 57.

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In response to Defendants’ motions to dismiss Plaintiffs’ First Amended Complaint,
Plaintiffs “concede[d] that additional facts and pleading with more particularity may be
necessary as to claims of fraud.” Dkt. 41 at 2. See generally Fed. R. Civ. P. 9(b) (“a party must
state with particularity the circumstances constituting fraud”). As the Court explained in its
Opinion and Order dismissing Plaintiffs’ First Amended Complaint, to the extent that Plaintiffs’
RICO claims are based on predicate acts of either federal mail or wire fraud, those predicate acts
also must be alleged with particularity. See Lancaster Comm. Hosp. v. Antelope Valley Hosp.
Dist., 940 F.2d 397, 405 (9th Cir. 1991) (applying Rule 9(b) to allegations of mail fraud as RICO
predicate acts); Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988)
(applying Rule 9(b) to allegations of mail and wire fraud as RICO predicate acts). Dkt. 57, at 8.
The Court further explained that to satisfy Rule 9(b), “a pleading must identify ‘the who,
what, when, where, and how of the misconduct charged,’ as well as ‘what is false or misleading
about [the purportedly fraudulent] statement, and why it is false.’” Cafasso v. Gen. Dynamics C4
Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Ebeid ex rel. United States v. Lungwitz,
616 F.3d 993, 998 (9th Cir. 2010)). In addition, “Rule 9(b) does not does not allow a complaint
to merely lump multiple defendants together but ‘require[s] plaintiffs to differentiate their
allegations when suing more than one defendant . . . and inform each defendant separately of the
allegations surrounding his [or her] alleged participation in the fraud.’” Swartz v. KPMG LLP,
476 F.3d 756, 764-65 (9th Cir. 2014) (alterations in original) (citation omitted)). These details
are required for Plaintiffs’ fraud claim as well as for Plaintiffs’ two RICO claims. Dkt. 57, at 8.
The Court also explained that with regard to Plaintiffs’ claim for breach of the implied
covenant of good faith and fair dealing, under Oregon law, every contract contains an implied
duty of good faith and fair dealing. Arnett v. Bank of America, N.A., 874 F. Supp. 2d 1021, 1033

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(D. Or. 2012). “A duty of good faith and fair dealing, however, may be implied as to a disputed
issue only if the parties have not agreed to an express term that governs that issue.” Id. (quotation
marks omitted) (citation omitted). Thus, Plaintiffs must allege, for each Defendant with whom
they claim to have had a contractual arrangement that was materially breached by that
Defendant, how that defendant breached the implied duty of good faith and fair dealing by doing
something other than that which the Defendant had an express contractual right to do. Dkt. 57,
at 9. The Court added that with regard to Plaintiffs’ claim for unjust enrichment, the elements of
the quasi-contractual claim of unjust enrichment are a benefit conferred, awareness by the
recipient that a benefit has been received and, under the circumstances, it would be unjust to
allow retention of the benefit without requiring the recipient to pay for it. Arnett, 874 F. Supp. 2d
at 1035 (quotation marks omitted) (citations omitted). Also, there “cannot be a valid legally
enforceable contract [for Plaintiffs’ good faith claim] and an implied contract covering the same
services.” Id. (quotation marks omitted) (citation omitted). Dkt. 57, at 9.
With regard to Plaintiffs’ claim for “unfair and deceptive business practices,” the Court
informed Plaintiffs that they must first specify which state or federal law Plaintiff is relying
upon. Plaintiff also must allege, in a fashion that is not merely conclusory, how each Defendant
sought to be held liable under that statute violated that law. Dkt. 57, at 9.
Finally, the Court reiterated to Plaintiffs the standards that govern a motion to dismiss.
The Court said that a complaint “may not simply recite the elements of a cause of action, but
must contain sufficient allegations of underlying facts to give fair notice and to enable the
opposing party to defend itself effectively.” Starr, 652 F.3d at 1216. Second, the court need not
credit the plaintiff’s legal conclusions that are couched as factual allegations and “a pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will

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not do.’” Ashcroft, 556 U.S. at 678-79 (2009). Third, a complaint must contain sufficient factual
allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the
opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652
F.3d at 1216. And fourth, “[a] claim has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Dkt. 57, at 10.
DISCUSSION
A. Plaintiffs’ RICO and Fraud Claims
To state a claim under RICO where the predicate acts involve either mail or wire fraud
and to state a claim for common law fraud, Plaintiffs “must identify ‘the who, what, when,
where, and how of the misconduct charged,’ as well as ‘what is false or misleading about [the
purportedly fraudulent] statement, and why it is false.’” Cafasso v. Gen. Dynamics C4 Sys., Inc.,
637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Ebeid ex rel. United States v. Lungwitz, 616 F.3d
993, 998 (9th Cir. 2010)). In addition, “Rule 9(b) does not does not allow a complaint to merely
lump multiple defendants together but ‘require[s] plaintiffs to differentiate their allegations when
suing more than one defendant . . . and inform each defendant separately of the allegations
surrounding his [or her] alleged participation in the fraud.’” Swartz v. KPMG LLP, 476 F.3d 756,
764-65 (9th Cir. 2014) (alterations in original) (citation omitted)). Plaintiffs’ allegations are
conclusory in nature, and Plaintiffs’ Second Amended Complaint fails to contain sufficient
factual allegations plausibly to suggest an entitlement to relief. Starr, 652 F.3d at 1216.
Accordingly, Plaintiffs’ RICO and fraud claims are dismissed with prejudice.

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B. Plaintiffs’ Claim of Breach of the Implied Covenant of Good Faith and Fair Dealing
To state a claim of breach of the implied covenant of good faith and fair dealing,
Plaintiffs must allege, for each Defendant with whom they claim to have had a contractual
arrangement that was materially breached by that Defendant, how that defendant breached the
implied duty of good faith and fair dealing by doing something other than that which the
Defendant had an express contractual right to do. Plaintiffs’ allegations are conclusory in nature,
and Plaintiffs’ Second Amended Complaint fails to contain sufficient factual allegations
plausibly to suggest an entitlement to relief. Starr, 652 F.3d at 1216. Accordingly, Plaintiffs’
Claim of Breach of the Implied Covenant of Good Faith and Fair Dealing is dismissed with
prejudice. In the alternative, the Court declines to exercise supplemental jurisdiction over this
state law claim. 28 U.S.C. § 1367(c)(3).
C. Plaintiffs’ Claim of Unjust Enrichment
To state a claim of unjust enrichment, Plaintiffs must allege a benefit conferred,
awareness by the recipient that a benefit has been received, and how under the circumstances it
would be unjust to allow retention of the benefit without requiring the recipient to pay for it.
Arnett, 874 F. Supp. 2d at 1035 (quotation marks omitted) (citations omitted). Plaintiffs’
allegations are conclusory in nature, and Plaintiffs’ Second Amended Complaint fails to contain
sufficient factual allegations plausibly to suggest an entitlement to relief. Starr, 652 F.3d at 1216.
Accordingly, Plaintiffs’ Claim of Unjust Enrichment is dismissed with prejudice. In the
alternative, the Court declines to exercise supplemental jurisdiction over this state law claim. 28
U.S.C. § 1367(c)(3).
D. Plaintiffs’ Claim of Unfair and Deceptive Business Practices
Plaintiffs allege that Defendants Deutsche Bank, Northwest Trustee Services, Mortgage
Electronic Registration Company, and Decision One Mortgage Company, violated Or. Rev. Stat.
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§§ 646.607(1), (2), (6), and (7) and 15 U.S.C. § 45 and that Defendants Lane Powell PC, Pilar
French, Robert E. Maloney, Jr., and Teresa Shill worked “in collusion” with the principal
Defendants “in furtherance of the deceptive business practices.” Plaintiffs’ allegations are
conclusory in nature, and Plaintiffs’ Second Amended Complaint fails to contain sufficient
factual allegations plausibly to suggest an entitlement to relief. Starr, 652 F.3d at 1216.
Accordingly, Plaintiffs’ Claim of Unfair and Deceptive Business Practices is dismissed with
prejudice. In the alternative, the Court declines to exercise supplemental jurisdiction over this
state law claim. 28 U.S.C. § 1367(c)(3).
In addition, Plaintiffs’ claim under Or. Rev. Stat. § 646.607 fails because claims under
that statute may be prosecuted only by the State of Oregon, and Oregon law “does not create a
private right of action for violations of ORS 646.607.” Norton v. Nelson, 252 Or. App. 611,
619-20 (2012). Further, the Oregon Unlawful Trade Practices Act (“UTPA”) does not apply to
the Loan at issue here because it was extended under an earlier version of the UTPA that did not
extend to "loans and extensions of credit." Roisland v. Flagstar Bank, FSB, 989 F. Supp. 2d
1095, 1108 (D. Or. 2013).
Moreover, to the extent that Plaintiffs seek to bring this claim under 15 U.S.C. § 45
(Section 5 of the Federal Trade Commission Act), it fails because there is no private right of
action under this particular federal law. Carlson v. Coca-Cola Co., 483 F.2d 279, 280 (9th Cir.
1973). For these reasons as well, Plaintiffs’ Claim of Unfair and Deceptive Business Practices is
dismissed with prejudice.
E. Plaintiffs’ Claims Are Barred by Issue Preclusion
Defendants also argue that Plaintiffs have repeatedly and unsuccessfully challenged in
state court the foreclosure and settlement enforcement proceedings that are challenged in this
action. Issue preclusion prevents re-litigation in a later proceeding of an issue of ultimate fact
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that has been finally determined by a valid prior proceeding. Clark v. Bear Stearns & Co., 966
F.2d 1318, 1320 )0th Cir. 1992); see also 28 U.S.C. § 1738. Moreover, the General Judgment in
the State Court Case currently is on appeal before the Oregon Court of Appeals, and the
pendency of an appeal does not eliminate a judgment’s preclusive effect. Ron Tonkin Gran
Turismo, Inc. v. Wakehouse Motors, Inc., 46 Or. App. 199, 207 (1980). Plaintiffs’ arguments
challenging the state court rulings should be resolved by the Oregon Court of Appeals, not by
this Court.
CONCLUSION
Defendants’ Motions to Dismiss Plaintiffs’ Second Amended Complaint (Dkts. 60, 61,
62, and 63) are GRANTED. Because Plaintiffs have failed to cure the deficiencies in their First
Amended Complaint previously identified by the Court and because it is clear to the Court that
these deficiencies cannot be cured by further amendment, this case is DISMISSED WITH
PREJUDICE. Plaintiffs’ Third Motion for Temporary Restraining Order (Dkt. 64) is DENIED
AS MOOT.
IT IS SO ORDERED.
DATED this 5th day of October, 2015.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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