Staton v. Bank of America (BAC) Home Loans Servicing LP et al

Filing 132

ORDER: Granting Defendants' Renewed Motion to Dismiss Third Amended Complaint 107 . All other pending motions in this case are DENIED as moot. This case is DISMISSED with prejudice. Signed on 5/6/2014 by Judge Owen M. Panner. (dkj)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
r

MEDFORD DIVISION
PAMELA K. STATON,
No.

6:10-cv-01306-PA

Plaintiff,.

v.

ORDER

BANK OF AMERICA (BAC)
HOME LOANS SERVICING, LP,
MORTGAGE ELECTRONIC
REGISTRATION, SYSTEMS
(MERS), RECONTRUST
COMPANY, NA, a subsidiary
of BAC NA,
Defendants.
PANNER,. J.

This matter comes before the Court on Defendants' Renewed
(

Motion to Dismiss Third Amended Complaint (#107).
motion is GRANTED.

Defendants'

This case is DISMISSED with prejudice.
Background

In November 2005,

Plaintiff took out a loan for $73s,qoo

from Countrywide Home Loan,
and Deed of Trust.

Inc.

(Countrywide), secured by a Note

Under the terms of the Deed of Trust,

Countrywide served as the originating lender,

Fidelity National

Title Insurance served as trustee, and Defendant Mortgage
Electronic Registration Systems, Inc.
1

- ORDER

(MERS) served as

beneficiary "solely as a nominee for Lender and Lender's
successors and assigns."

The Deed of Trust also provided for the

appointment of a loan servicer, who ·was entitled to collect
payments and enforce the terms of the loan.

At some point,

Defendant Bank of America (BAC) became the loan servicer.
In
loan.

Septemb~r

2009, Plaintiff

~eased

making payments on her

In January 2010, Defendant ReconTrust, as successor

trustee, recorded a Notice of Default and Election to Sell the
Property (NODES), which was later rescinded.

In November 2010,

ReconTrust recorded a second NODES, which was ~again rescinded.
third NODES was recorded in May 2011.

A

The third NODES has also

been rescinded and Defendants' counsel certifies that they will
make no further attempt to non-judicially foreclose the Deed of
Trust.

Rather,

Defendants represent that they intend to proceed

with a judicial foreclosure.
Plaintiff initially filed this action in Lane County Circuit
Court in 2010.

Following the filing of Plaintiff's First Amended

Complaint, Defendants removed to-federal court and filed a motion
to dismiss.

In a detailed opinion (#38), Judge Aiken granted in

part and denied in part.

On September 26, 2011, Plaintiff filed

a Second Amended Complaint.

Defendants again moved to dismiss.

On May 5, 2012, Judge Aiken issued an Order (#75)

staying the

motion to dismiss with regard to some of Plaintiff's claims
pending the Oregon Supreme Court's ruling on certified questions.
Judge Aiken dismissed the remaining claims.
Plaintiff filed her Third Amended Complaint
29, 2012.

Defendants again moved to dismiss.

(TAC) on June

Judge Aiken stayed

the entire case pending the Oregon Supreme Court's decision on
2

- ORDER

( # 98) .

certified questions

On June 6, 2013, the Oregon Supreme

Court issued its decision on the certified questions in Brandrup
v. ReconTrust, NA,

353 Or. '668

(2013).

The case was subsequently

transferred to this Court and the stay lifted.

Defendants have

renewed their motion to dismiss the TAC.
Legal Standard

Where the plaintiff "fail[s] to state a claim upon which
relief can be granted," the 6ourt must dismiss the action.
R. Civ. P. 12 (b) (6).

Fed.

To survive a motion to dismiss, the

complaint must allege "enough facts to state a claim to relief
that is plausibie on its face."
550 U.S. 544, 570

Bell Atlantic Corp. v. Twombly,

(2007). For the purpose of the motion to

dismiss, the complaint is liberally construed in favor of the
plaintiff and its allegations are taken as true.
Walters, 719 F.2d 1422, 1424

.
assertions

(9th Cir:. 1983).

Rosen v.

However, bare

that amount to nothing more than a "formulaic

recitation of the elements" of a claim "are conclusory and not
entitled to be assumed true."
680-81

(2009).

the complaint

Ashcroft v. Iqbal, 556 U.S. 662,

Rather, to state a plausible claim for relief,
~must

contain sufficient allegations of underlying

facts" to support its legal conclusions.
1202,

1216~

reh'g en bane denied,

Starr v. Baca,

652 F.3d

659 F. 3d 850 (9th Cir. 2011).

Discussion

Plaintiff's Third Amended Complaint asserts claims for
declaratory judgment, fraud, negligent misrepresentation, breach
of contract, trespass, violations of the Fair Debt Collection
Practices Act, violations of the Oregon Trust Deed Act, quiet
title, and to remove cloud on title.
3

- ORDER

A. Plaintiff's First Claim

Plaintiff's first claim is for declaratory judgment.
Plaintiff alleges that Defendants' attempted non-judicial
foreclosure was unlawful.

Plaintiff also alleges that her loan

was improperly securitized, in part because Defendants are
alleged to have failed to comply with the terms of their Pooling
and Servicing Agreement (PSA), and that, as a consequence, her,
loan is now an unsecured obligation.

Plaintiff requests that the

Court enjoin Defendants from acting as trustees or appointing
successor trustees.

Plaintiff also seeks a declaration that the

attempted non-judicial foreclosure is improper.

Defendants argue

that because they ·have certified that they do not intend to
resurrect the non-judicial foreclosure,
The constitutional

autho~ity

to actual cases and controversies.

this claim is now moot.

of federal courts extends only
U.S. Const. art. III,

2,

§

cl. 1; see Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70
(1983).

A case or controversy requires that "an actual, ongoing

controversy

ex~st

at all stages of federal court proceedings."

Pitts v. Terrible Herbst, Inc.,
2011).

653 F.3d 1081, 1086 (9th Cir.

Federal courts lack jurisdiction over moot cases.

Arrow, 464 U.S. at 70.

Iron

If events subsequent to the filing of the

case resolve the parties' dispute, the case must be dismissed.
Pitts, 653 F.3d at 1087.
When a non-judicial foreclosure sale is rescinded, "any
claims premised on the non-judicial foreclosure are rendered
moot."

Vettrus v. Bank of America, NA, No. 6:12-cv-074-AA, 2012

WL 5462914 at *4

(D. Or. November 6, 2012) (quoting Thomas v.

OneWest Bank, FSB, No. 10-cv-6234-AA, 2012 WL 2049462
4

- ORDER

(D. Or.

June 4, 2012).

There is no cause of action under Oregon law-for

the tort of wrongful attempted foreclosure.
Nat'l Mortg. Ass'n, No.

Hartley v. Fed.

6:11-cv-6374-TC, 2012 WL 775679 at *3 (D.

Or. Mar. 5, 2012).
The remedies of judiciil and non-judicial foreclosure are
mutually exclusive.
defendant's
a judicial

Vettrus, 2012 WL 5462914 at *4.

r~presetitation

foreclosui~

A

to the court that it intends to pursue

could bar the resurrection of a previously

rescinded non-judicial foreclosure by judicial estoppel.
See Durham v. Bank of New York Mellon, No. 1:12-cv-00273-PA, 2012
WL 2529188 at *2

(D. Or. June 28, 2012).

In this case, Defendants have rescinded their non-judicial
foreclosure and Defendants' counsel have certified to the Court
that they intend to pursue a judicial foreclosure in state court.
Following the established practice of courts in this District, I
conclude that this claim is now moot.
Plaintiff argues that it is legal error to dismiss a claim
for declaratory relief for failure to state a claim under the
Oregon adoption of the Uniform Declaratory Judgment Act, ORS
28.010 et seq.

Plaintiff's argument is not well taken, however.

Oregon's declaratory judgment statute does not confer
jurisdiction for this Court to issue advisory opinions on moot
issues.

See Durham, 2012 WL 2529188 at *3.

Additionally, it is well settled that a plaintiff lacks
standing to enforce the terms of a PSA where she is neither a
party to, nor a third party beneficiary of, that agreement.
Oliver v. Delta Financial
AA, 2012 WL 3704954 at *4
5

- ORDER

Ligu~dating

Trust, No. 6:12-cv-00869-

(D. Or. Aug. 27, 2012); Graham v.

ReconTrust Co., NA, No. 3:11-cv-11339-BR, 2012 WL 1035712 at *4
(D. Or. Mar. 27, 2012); Branson v. ReconTrust Co., NA, No. 3:11cv-1526, 2012 WL 1473395 at *3 (D. Or. April 26, 2012).
Accordingly, to the extent that this claim is premised upon
Defendants' alleged failure to comply with the terms of the PSA,
Plaintiff also lacks standing.
Plaintiff's first claim for declaratory judgment is
DISMISSED.
B. Plaintiff's Second Claim

Plaintiff's second claim is for fraud.

This claim alleges

thirteen separate counts of fraud, although two of the counts are
labeled as "Count 12."
In order to state a claim for fra:ud under Oregon law, a
plaintiff must plead the following elements: 1) a representation;
2) its falsity; 3) its materiality; 4) the speakers knowledge of
its falsity or ignorance of its truth; 5) his intent that it
should be acted upon by the person and ln the manner reasonably
contemplated; 6) the hearer's ignorance of its falsity; 7) her
reliance on its truth; 8) her right to rely thereon; and 9) her
consequent and proximate injury.

Webb v. Clark, 274 Or. 387, 391

( 197 6) .
Under Fed. R. Civ. P .. 9(b), fraud is subject to heightened
pleading standards.
Runner Inc.,

WPP Luxembourg Gamma Three Sarl v. Spot

655 F.3d 1039, 1047

(9th Cir. 2011).

"In alleging

fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.

Malice, intent,

knowledge, and other conditions of a person's mind may be alleged
generally."
6

- ORDER

Fed. R. Civ. P. 9(b).

1. Count One

Plaintiff's first count appears to allege that Defendants
securitized the loan and lack the power to foreclose.

Plaintiff

debatably alleges a representation in the form of the NODES, but
fails to allege any of the other elements of a fraud claim.
2. Count Two

Plaintiff's second count does not allege any elements of a
fraud claim, but merely incorporates the preceding paragraphs and
adds "Plaintiff's claims are premised in part on defendant's
wrongful and deceitful acts described above."
3. Count Three

Plaintiff's third count alleges that a representative of BAC
s~nt

Plaintiff a lettei indicating that she was eligible for a

loan modification.

Plaintiff was apparently not eligible and

many of the phone numbers she was provided led to automated phone
services.

Th~s

count lacks any allegations of materiality or the

representative's intent that Plaintiff rely on the letter.
Plaintiff alleges that the representative knew the letter to be
false and that the letter "caused plaintiff damage," without any
of the particularity required under Rule 9.
4. Count Four

Plaintiff's fourth count

~lleges

that representatives of

Defendants attempted to deceive Plaintiff's realtor into allowing
them access to the house in order to shut off the utilities.
Plaintiff's realtor apparently did not allow the representatives
into the property and contacted Plaintiff about the attempt.
Plaintiff alleges that this caused her emotional damages in the
amount of $5,000.
7

- ORDER

Critically, there is no allegation that either

Plaintiff or the realtor believed the representatives or relied
upon their statements.

Rather,

Plaintiff alleges that they

denied the representatives entry into the property.
5. Count Five

This count appears to allege that Defendants told Plaintiff
that federal funds were not available to refinance her loan when,
in fact,

such funds were available.

This claim does not allege

the representation with sufficient particularity, nor does it
allege that the Plaintiff was ignorant of the representation's
falsity, or that she relied upon it.

There is n6 allegation of

causation or damages.
6. Count Six

This count alleges that Plaintiff wa~ told that if she sent
in one month's payment, she would- be removed from the "default
group."

Plaintiff alleges that she did so.

As Plaintiff was

apparently already three months behind on her payments, it is not
clear how Plaintiff was damage9 by making a payment of money
already owing.

Furthermore, subsequent counts indicate that the

check was actually returned to Plaintiff.
7. Count Seven

This count alleges that the bank returned Plaintiff's check
with a letter indicating that the payment was rejected as
insufficient to bring the loan current.
this action forced her into default.

Plaintiff contends that

This allegation is not

consistent with the earlier allegations, however, as Plaintiff
was apparently already several months behind when. she sent in the
single month's payment.

Plaintiff could not, therefore, have

been forced into default solely by the banks refusal to accept an
8

ORDER

insufficient amount.
8. Count Eight

This count alleges that Defendants filed documents
containing false information when initiating the n?n-judicial
foreclosure of Plaintiff's property.

There is no allegation of

Plaintiff's ignorance of the representations' falsity or her
reliance on them.

Nor is there any allegation that Defendants

intended Plaintiff to act based on those

i~presentations.

9. Counts Nine, Ten, and Eleven

These counts continue Plaintiff's attack on the non-judicial
foreclosure process and Defendants' refusal to provide Plaintiff
with a loan modification.

They do not allege any of the elements

of a fraud claim.
10. First Count Twelve

This count alleges that Plaintiff had a potential buyer for
the property, but that the deal fell through because of
Defendants' allegedly fraudulent foreclosure filings.

Even

assuming that the foreclosure filings constituted a false
representation, there is no indication that Plaintiff was
ignorant of their falsity or that she relied upon them.

To the

extent that Plaintiff asserts that her potential buyers were
deceived, she lacks standing to assert a claim on their behalf.
11. Second Count. Twelve

This count appears to

al~ege

that a representative of

Defendants made a false affidavit initiating the non-judicial
foreclosure.

Once again, there is no allegation that Plaintiff

was ignorant of the falsity of the allegations or that she relied
upon them.
9

- ORDER

Rather, it appears that Plaintiff alleges that she

was aware they were false.
None of Plaintiff's thirteen counts allege all of elements
of fraud.

When elements do appear within the counts, they are

often conclusory and lack the particularity required under Rule
9.

Nor do the counts allege a single coherent claim for fraud

when considered collectively.

Accordingly, this claim is

DISMISSED.
C. Plaintiff's Third Claim

The third claim is for negligent misrepresentation.

There

are fourteen counts, covering the allegations made in support of
Plaintiff's claims for fraud and declaratory relief, as well as
new allegations that Defendants' misrepresentations interfered
with Plaintiff's ability to conclude a short sale of the
property.
Under Oregon law, a negligent misrepresentation claim for
economic losses "must be predicated on some duty of the negligent
actor to the injured party beyond the common law duty to exercise
reasonable care to prevent foreseeable harm."

Onita Pacific

Corp. v. Trustees of Bronson, 315 Or. 149, 159 (1992).

A party

may be held to such a heightened duty if there is a "special
relationship" in which "the party sought to be held liable had
some obligation to pursue the interests of the other party."
Conway v. Pacific Univ., 324 Or. 231, 237
In this case,
fiduciary duty.

Pla~ntiff

(1996).

alleges that the bank owed her a

The allegations within the TAC, however, only

support the existence of an ordinary creditor-debtor
relationship.

The Oregon Supreme Court has declined to find a

heightened duty under such circumstances, instead describing the
10 - ORDER

creditor-debtor relationship as "arm's-length" and "commercial."
Uptown Heights Assocs. Ltd. P'ship v. Seafirst Corp., 320 Or.
638,

650 (1995).
I cannot, therefore, conclude that any special relationship

existed between the parties that would support the heightened
duty needed to sustain a negligent

misr~presentation

claim.

Accordingly, this claim is DISMISSED.
D. Plaintiff's Fourth Claim
Pl~intiff's

fourth claim is for breach of contract.

Plaintiff,alleges that Defendants breached a contract by
declining to accept Plaintiff's single month's payment and
instead pursued non-judicial foreclosure.
To state a claim for breach of contract, a plaintiff must
allege the existence of a contract, its relevant terms,
plaintiff's full performance and lack of breach, and defendant's
breach resulting in damage to the plaintiff.

Slover v. Oregon

State. Bd. of Clinical Soc. Workers, 144 Or. App, 565, 570
(1996).
It does not appear that Plaintiff bases this claim on the
original Deed of Trust.

Nor could she, as her Complaint alleges

that she was behind on her payments and therefore in breach.
Rath~r,

Plaintiff seems to allege the existence of a

s~condary

agreement, probably the one referenced in counts 6 and 7 of
Plaintiff's fraud claim.

Plaintiff does not, however, fully

allege the terms of this contract or ·state what consideration was
offered, other than the conclusory allegation that there was
"adequate consideration."
In any event, contracts concerning interests in real
11 - ORDER

property must be in writing under the statute of frauds.
41.580 (1) (e).

ORS

If a written contract is required by the statute

of frauds, a modification to that contract must similarly be
memorialized in writing.

See Washington Square, Inc. v. First

Lady Beauty Salons, Inc., 290 Or. 753, 761

(~981).

These

requirements fully apply to Deeds of Trust. Nelson v. Am. Home
Mortg. Servicing, Inc., 3:13-cv-306-BR, 2013 WL 3834656 at *5 (D.
Or. July 24, 2013).
In this case, Plaintiff has alleged only that an oral
agreement existed.

As oral contracts cannot modify a Deed of

Trust under Oregon law, I conclude that Plaintiff has not stated
a claim for breach of contract.

This claim is DISMISSED.

E. Plaintiff's Fifth Claim

Plaintiff's fifth claim is for trespass.

Plaintiff alleges

that a r~presentative of the trustee was walking around the
property taking pictures, apparently in preparation for the
foreclosure.
To state a claim for trespass, a plaintiff must show an
intentional, physical intrusion by the defendant on to the
plaintiff's property which causes damage to the plaintiff and
which has not been authorized or consented to by the plaintiff.
Verizon Nw., Inc. v. Mainstreet Dev., Inc.,
1278

(D. Or. 2010).

693 F. Supp. 2d 1265,

"If a trespasser has the landowner's consent

to enter upon the land for a particular purpose, the landowner
cannot maintain an action for trespass."

Id.

In this case, section 7 of the Deed of Trust provides that
"Lender or its agent may make reasonable entries upon and
inspections of the Property."
12 - ORDER

Plaintiff contends that the Deed

of Trust is a nullity.

Plaintiff further disputes the

reasonableness of Defendants' alleged entry on the property.
Defendants contend that this provision constitutes consent for
the alleged trespass and that taking pictures of the exterior of
the property is a manifestly reasonable

entry~

In light of the express terms of the Deed of Trust, I cannot
conclude that Plaintiff has plausibly asserted a claim for
trespass.

This claim is DISMISSED.

F. Plaintiff's Sixth Claim

Plaintiff's sixth claim is for violations of the Fair Debt
Collection Practices Act (FDCPA). Courts in this District have
held that actions taken to foreclose on a property pursuant to a
Deed of Trust are not a debt collection within the me~ning of the
FDCPA.

Hulse v. Ocwen, 195 F. Supp.2d 1188, 1204

(D. Or. 2002);

Lampshire v. Bank of America, No. 6:12-cv-1574-AA, 2013 WL
1750479 at *3 (D. Or. April 20, 2013).
'

As this claim relates entirely to Defendants' attempt to
foreclose the property, I conclude that it cannot state a claim
for violation of the FDCPA.

Accordingly, this claim is

DISMISSED.
G. Plaintiff's Seventh Claim

This claim alleges violations of the Oregort
(OTDA).

T~ust

Deed Act

Plaintiff claims that Defendants filed false documents .

in support of a non-judicial foreclosure.

As the non-judicial

foreclosure has now been cancelled, I find this claim to be moot
for the reasons set forth ·in Section A, supra.
H. Plaintiff's Eighth Claim,

Plaintiff's eighth claim alleges intentional interference
13_- ORDER
r'

with contractual relations.

Plaintiff claims that Defendants

prepaid her homeowners insurance,
to reduce her coverage.
6f this interferenc~,

causing her insurance carrier

Plaintiff alleges that,

as a consequence

she w~s denied coverage for subsequent

damage to her home.
To state a claim for intentional interference with economic
relations,

a plaintiff must show: 1) the existence of a

professional or business relationship; 2)

intentional

interference with that relationship; 3) by a third party; 4)
accomplished through improper means or for an improper purpose;

5) a causal effect between the interference and damage to the
economic relationship; and 6) damages.
321 Or. 532,

535

(1995).

McGanty v.

Staudenraus,

In order to show improper purpose, the

defendant's purpose must be to cause the plaintiff ihjury "as
such."
498

Nw. Natural Gas Co. v. Chase Gardens,

Inc.,

328 Or.

487,

(1999).

In this case,

Plaintiff alleges that Defendants prepaid her

insurance "for the purpose of causing plaintiff to incur
substantial additional fees," and also "for the purpose and with
the intent to interfere with plaintiff's quiet use and possession
of her home and its contents."
It appears, however,

that Defendants were simply pursuing a

foreclosure based on Plaintiff's default.
based on the allegations in

th~

TAC,

I cannot conclude,

that Defendants prepaid

Plaintiff's insurance in order to-cause Plaintiff injury "as
such."

Furthermore,

Plaintiff has not plausibly alleged the

causal connection between Defendants' prepayment of the
homeowners insurance and the insurance company's decision to
14 - ORDER

reject Plaintiff's subsequent attempt to pay her homeowners
insurance.

This claim is DISMISSED.

I. Plaintiff's Ninth Claim
Plaintiff's ninth claim is for declaratory relief.
Plaintiff re-asserts her claims that the loan was improperly
securitized, that Defendants nave not complied with the terms of
the PSA, and that the involvement of MERS is improper.

Plaintiff

seeks to have the rights of the parties declared and requests
that the Court enjoin any foreclosure attempt.
The non-judicial foreclosure has been cancelled and, as yet,
there does not appear to be any pending judicial foreclosure.
in Section A,
J.

supra,

As

I DISMISS this claim as moot.

Plaintiff's Tenth Claim

This claim is for quiet title.

Plaintiff seeks a

declaration that she holds superior title to the property.
Oregon is

~

"lien theory" state, "meaning that a mortgage on

real estate does not convey legal or equitable title or interest
to the holder of mortgage."
621 (1999).

Kerr v. Miller, 159 Or. App. 613,

Rather, the holder of the mortgage has only a lien

on the property.

Id.

In Tabb v. One West Bank, the court

dismissed a quiet title claim for an incomplete foreclosure,
holding that the dispute was "not over title, but whether the
Deed of Trust is a lien that can be foreclosed against
plaintiffs' property."

Tabb v. One West Bank, FSB, No. 3:10-cv-.

855-ST, 2011 WL 4448752 at *9 (D. Or. Aug. 26, 2011).
The facts in this case are similar to those in Tabb.
Defendants have not asserted a superior title to the property,
but instead have attempted to foreclose a lien on the property.
15 - ORDEB

Accordingly, I conclude that Plaintiff cannot state a claim for
quiet title.
K.

This claim is DISMISSED.

Plaintiff's Eleventh.Claim

Plaintiff's final claim is to remove cloud on title.

To

state a claim to remove a cloud on title, a plaintiff must allege
that a seemingly valid claim or encumbrance is, in fact,

invalid.

Moores v. Clackamas Cnty., 40 Or. 536, 539 (1902).
In this case, Plaintiff alleges that the securitization of
her loan and the involvement of MERS invalidate Defendants' lien.
Judge Aiken previously declined to rule on the MERS issue pending
the Oregon Supreme Court's decision in Brandrup.

While

Brandrup did hold that MERS could not satisfy the statutory
definition of a beneficiary, there is nothing in that decision to
support the contention that the mere involvement of MERS in the
loan will render the lien invalid. See generally, Brandrup v.
ReconTrust Co., 353 Or. 668

(2013).

Nor is there any support in Brandrup for the contention that
securitization of the loan will render the lien invalid.

Indeed,

Judge Aiken previously rejected this argument, noting that the
Deed of Trust expressly permits "The Note, or a partial interest
in the Note (together with this Security Instrument) can be sold
one or more times without prior notice to Borrower."
Accordingly, this claim is DISMISSED.
L.

Dismissal with Prejudice

Trial courts are vested with the discretion to dismiss an
action "on terms that the court considers proper."
P.

Fed. R. Civ.

41 (a) (2); see also Diamond State Ins. Co. v. Genesis Ins. Co.,

.379 Fed. App'x. 671,
16 - ORDER

672-3

(9th Cir.

2010)~

This case has been ongoing for four years.
Plaintiff's third attempt to amend the complaint.

This is
As set forth

above, Plaintiff's claims are either moot or defective.

Despite

repeated attempts and the guidance offered by Judge Aiken in her
previous Orders, Plaintiff has been unable to plead sufficient
facts to support her claims.

Nor does it seem that she would be

able to do so if given yet another opportunity to amend the
complaint.

Accordingly, I exercise my discretion to dismiss with

prejudice.
Conclusion

Defendants' Motion Renewed Motion to Dismiss Third Amended
Complaint (#107) is GRANTED.
case are DENIED as moot.

All other pending motions in this

This case is DISMISSED with prejudice.

IT IS SO ORDERED.
DATED this

day of May, 2014.

(j )R(/J .
OWEN~~b-­
U.S. DISTRICT JUDGE

17 -ORDER