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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HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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STEVEN POLITO,

CASE NO. C16-5613RBL

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Plaintiff,
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ORDER GRANTING MOTION TO
DISMISS

v.
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WESTERN CAPITAL MORTGAGE,
INC., et al.,
Defendants.

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THIS MATTER is before the Court on Defendant Caliber Home Loans’ Motion to
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Dismiss [Dkt. #31]. Plaintiff Polito has not filed a response, and the deadline for doing so was
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January 23. Caliber asks the Court to construe Polito’s failure to respond as an admission that the
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motion has merit under Local Rule 7(b)(2): “Except for motions for summary judgment, if a
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party fails to file papers in opposition to a motion, such failure may be considered by the court as
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an admission that motion has merit.”
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Caliber’s Motion does have merit. A plaintiff’s complaint must allege facts to state a
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claim for relief that is plausible on its face. See Aschcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
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A claim has “facial plausibility” when the party seeking relief “pleads factual content that allows
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the court to draw the reasonable inference that the defendant is liable for the misconduct
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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).
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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
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The Motion to Dismiss is GRANTED and Polito’s claims against Caliber Home Loans

12 are DISMISSED with prejudice and without leave to amend.
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IT IS SO ORDERED.

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Dated this 16th day of February, 2017.

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A

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Ronald B. Leighton
United States District Judge

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ORDER GRANTING MOTION TO DISMISS - 2