Kilpatrick et al v. Taylor Bean and Whitaker Mortgage Corporation et al

Filing 15

ORDER GRANTING MOTION TO DISMISS; granting dft's 8 Motion to Dismiss for Failure to State a Claim. Parties Northwest Trustee Services Inc, Bank of America NA, Mortgage Electronic Registration System (MERS), and Taylor Bean and Whitaker Mortgage Corporation are dismissed as defendants. Plaintiffs' Complaint is DISMISSED with prejudice and without leave to amend. DCE shall close this file. Signed by Judge Lonny R. Suko. (LE, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
DONALD and LEILANI
KILPATRICK, husband and wife,

)
)
)
)
) NO. CV-13-265-LRS
Plaintiffs,
)
) ORDER GRANTING
) MOTION TO DISMISS
v.
)
)
TAYLOR, BEAN and WHITAKER )
MORTGAGE CORPORATION;
)
MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEM
)
(“MERS”); BANK OF AMERICA, )
N.A.; NORTHWEST TRUSTEE
)
SERVICES, INC.; JOHN DOES
)
NOS. 1-50,
)
)
)
Defendants.
)
______________________________ )
BEFORE THE COURT is the Motion To Dismiss (ECF No. 8) filed by
Defendants Mortgage Electronic Registration Systems, Inc., and Bank of
America, N.A., in which Defendant Northwest Trustee Services, Inc., joins
(ECF No. 12). The motion is heard without oral argument.
Plaintiffs have not filed a response to the motion and the time has long
passed for doing so. LR 7.1(b)(2)(B) (21 days after filing of a dispositive
motion). Defendants’ motion was filed on July 29, 2013, and therefore, any
response was due no later than August 19, 2013. Per LR 7.1(d), the failure to
comply with the requirements of LR 7.1(b) “may be deemed consent to entry of

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ORDER GRANTING
MOTION TO DISMISS-

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an Order adverse to the party who violates these rules.”
When evaluating the sufficiency of a complaint, a court is not required

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“to accept as true allegations that are merely conclusory, unwarranted

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deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig.,

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536 F.3d 1049, 1056-57 (9th Cir. 2008). Although they may provide the

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framework of a complaint, legal conclusions are not accepted as true and

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“[t]hreadbare recitals of elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal,

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S.Ct. 1937, 1949-50 (2009). Factual allegations must be enough to raise a right

U.S.

, 129

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to relief above the speculative level, on the assumption that all the allegations

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in the complaint are true (even if doubtful in fact). Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555, 127 S.Ct. 1955 (2007). “A complaint must contain

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sufficient factual matter, accepted as true, to state a claim to relief that is

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plausible on its face.” Iqbal, 129 S.Ct. at 1949. “A claim has facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.”

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Id.

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For the reasons set forth in Defendants’ motion, Plaintiffs’ Complaint

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fails to meet the aforementioned standards. The factual allegations in the

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Complaint are conclusory and insufficient to raise a right to relief above the

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speculative level. Principally for this reason, and in light of the fact

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Defendants have not filed a response, Defendants’ Motion To Dismiss (ECF

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No. 8) is GRANTED pursuant to Fed. R. Civ. P. 12(b)(6). Although counsel

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has not appeared on behalf of Defendant Taylor, Bean and Whitaker Mortgage

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Corporation and therefore, it has not joined in the Motion To Dismiss, it too is

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dismissed as a Defendant. The factual allegations in the Complaint are

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conclusory and insufficient to raise a right to relief above the speculative level

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ORDER GRANTING
MOTION TO DISMISS-

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as to any of the named Defendants. Plaintiff’s Complaint is DISMISSED with

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prejudice and without leave to amend.

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IT IS SO ORDERED. The District Executive is directed to enter this
order and forward copies to counsel. The file shall be CLOSED.
DATED this

17th

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of September, 2013.
s/Lonny R. Suko

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LONNY R. SUKO
United States District Judge

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ORDER GRANTING
MOTION TO DISMISS-

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