Dennis et al v. Wells Fargo Bank NA et al

Filing 71

ORDER - The Court gave Plaintiffs leave to amend their prior complaint in the event that they could overcome the deficiencies in their earlier pleadings. The amended complaint does not overcome those deficiencies, and the Court does not have reason to believe Plaintiffs could state a plausible claim if given leave to amend again. Under the circumstances, the Court may act within its discretion to deny leave to amend when, as is the case here, amendment would be futile. Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th Cir. 2010). Defendants' motions to dismiss (ECF 65 and ECF 66 ) are therefore GRANTED. Plaintiffs' second amended complaint (ECF 63 ) is DISMISSED with prejudice. Signed on 4/25/2019 by Judge Michael H. Simon. (Mailed to Pro Se party on 4/25/2019.) (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DWAYNE J. DENNIS and
HAZEL R.D. DENNIS,

Case No. 3:18-cv-1049-SI
ORDER

Plaintiffs,
v.
WELLS FARGO BANK, N.A. and
QUALITY LOAN SERVICE
CORPORATION OF WASHINGTON,
Defendants.

Michael H. Simon, District Judge.
On January 22, 2019, this Court granted Defendants’ motions to dismiss, but also granted
leave to Plaintiffs Dwayne and Hazel Dennis to file a second amended complaint if they believed
they could cure the deficiencies identified in that Order. ECF 62. Plaintiffs filed their second
amended complaint on February 14, 2019. ECF 63. Defendants now move to dismiss the second
amended complaint for failure to state a claim. ECF 65, 66. For the reasons that follow, the
second amended complaint 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
PAGE 1 – ORDER

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). 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.
DISCUSSION
Plaintiffs, representing themselves, sought in their initial complaint to enjoin the
foreclosure of their home and obtain money damages. Their lawsuit relates to a line of credit
secured by their home that Plaintiffs obtained in 2005 from Defendant Wells Fargo Bank, N.A.
(“Wells Fargo”). Plaintiffs’ second amended complaint again asserts that the foreclosure was
wrongful, but does not add allegations of underlying facts to explain why the foreclosure was
wrongful. The second amended complaint asserts two additional claims: (1) fraud, based on an
alleged interaction with the manager of a Wells Fargo retail banking location and (2) unspecified
violations of the Real Estate Settlement Procedures Act (“RESPA”). ECF 63.
In its prior Order, the Court advised Plaintiffs that, to state a plausible claim for relief,
they “may not simply recite the elements of a cause of action.” ECF 62. Plaintiffs’ fraud claim
fails to state a claim because it simply recites the elements of a cause of action, and does not
PAGE 2 – ORDER

plead facts to support that claim, much less with the particularity required under Rule 9 of the
Federal Rules of Civil Procedure. To establish a claim for fraud under Oregon law, Plaintiffs
must allege a materially false statement made knowingly with the intent to induce reliance,
which causes harm as a proximate result of such detrimental reliance. Munson v. Wells Fargo
Bank, 2018 WL 6515131, at *3 (D. Or. Dec. 11, 2018). Plaintiffs “must state with particularity
the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). This stringent pleading standard
requires plaintiffs to allege “the who, what, when, where, and how” of the alleged fraudulent
conduct. Taylor v. Gorilla Capital, Inc., 2018 WL 3186946, at *3 (D. Or. June 28, 2018);
Munson, 2018 WL 6515131, at *3 (plaintiffs must allege “the time, place and specific content of
the false representation as well as the identities of the parties to the misrepresentation.”).
Plaintiffs instead recite the elements required to establish a claim for fraud and assert that
Wells Fargo engaged in fraud when it failed to produce documents regarding their loan, and that
Wells Fargo engaged in fraud when Plaintiffs were not able to obtain copies of loan documents
from Wells Fargo. Such conclusory assertions are not sufficient to establish a plausible claim for
relief under the pleading standard because they do not establish “the who, what, when, where,
and how” of Wells Fargo’s alleged fraudulent conduct. Taylor, 2018 WL 3186946, at *3.
Plaintiffs also reference RESPA, but do not describe how Defendants violated RESPA
nor what factual allegations support that purported RESPA claim. This added claim, too, fails to
state any claim upon which relief may be granted.
CONCLUSION
The Court gave Plaintiffs leave to amend their prior complaint in the event that they
could overcome the deficiencies in their earlier pleadings. The amended complaint does not
overcome those deficiencies, and the Court does not have reason to believe Plaintiffs could state
a plausible claim if given leave to amend again. Under the circumstances, the Court may act
PAGE 3 – ORDER

“within its discretion to deny leave to amend when,” as is the case here, “amendment would be
futile.” Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th Cir. 2010). Defendants’ motions to
dismiss (ECF 65 and ECF 66) are therefore GRANTED. Plaintiffs’ second amended complaint
(ECF 63) is DISMISSED with prejudice.
IT IS SO ORDERED.
DATED this 25th day of April, 2019.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 4 – ORDER