Polito v. Western Capital Mortgage, Inc. et al

Filing 34

ORDER granting 31 Defendant Caliber Home Loans (ONLY) Motion to Dismiss for Failure to State a Claim with prejudice and without leave to amend; Caliber Home Loans terminated. Signed by Judge Ronald B. Leighton.(DN)

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1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 STEVEN POLITO, CASE NO. C16-5613RBL 9 Plaintiff, 10 ORDER GRANTING MOTION TO DISMISS v. 11 12 13 WESTERN CAPITAL MORTGAGE, INC., et al., Defendants. 14 THIS MATTER is before the Court on Defendant Caliber Home Loans’ Motion to 15 Dismiss [Dkt. #31]. Plaintiff Polito has not filed a response, and the deadline for doing so was 16 January 23. Caliber asks the Court to construe Polito’s failure to respond as an admission that the 17 motion has merit under Local Rule 7(b)(2): “Except for motions for summary judgment, if a 18 party fails to file papers in opposition to a motion, such failure may be considered by the court as 19 an admission that motion has merit.” 20 Caliber’s Motion does have merit. A plaintiff’s complaint must allege facts to state a 21 claim for relief that is plausible on its face. See Aschcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 22 A claim has “facial plausibility” when the party seeking relief “pleads factual content that allows 23 the court to draw the reasonable inference that the defendant is liable for the misconduct 24 ORDER GRANTING MOTION TO DISMISS - 1 1 alleged.” Id. ). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 2 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 3 of action will not do. Factual allegations must be enough to raise a right to relief above the 4 speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 5 Polito has failed to state a plausible claim against this standard. Most of his claims were 6 waived by his failure to enjoin the foreclosure sale, and his fraud claim is inadequately pled 7 under Rule 9. His negligence claim is barred by the economic loss rule and none of his claims 8 are supported by any plausible factual allegations. His “split the note” claim is also not viable. 9 Finally, as Caliber points out, this is Polito’s second “bite at the apple”—his prior, similar case 10 was dismissed in 2016. 11 The Motion to Dismiss is GRANTED and Polito’s claims against Caliber Home Loans 12 are DISMISSED with prejudice and without leave to amend. 13 IT IS SO ORDERED. 14 Dated this 16th day of February, 2017. 16 A 17 Ronald B. Leighton United States District Judge 15 18 19 20 21 22 23 24 ORDER GRANTING MOTION TO DISMISS - 2

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