DANA COWARD V. JPMORGAN CHASE BANK, No. 14-16378 (9th Cir. 2016)
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The court issued a subsequent related opinion or order on October 14, 2016.
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS AUG 15 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DANA Y. COWARD, No. 14-16378 Plaintiff - Appellant, D.C. No. 2:11-cv-03378-GEB-AC v. MEMORANDUM* J.P. MORGAN CHASE BANK, N.A., Defendant - Appellee. Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding Submitted August 11, 2016** San Francisco, California Before: GRABER, and McKEOWN, Circuit Judges, and PETERSON,*** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Rosanna Malouf Peterson, United States District Judge for the Eastern District of Washington, sitting by designation. Dana Coward appeals the dismissal of her fourth amended complaint against JP Morgan Chase Bank, N.A. (“JP Morgan”) alleging fraud in the origination of her mortgage loan. The district court dismissed the complaint without leave to amend for failure to comply with the administrative requirements set out in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1821(d)(13)(D), and for failure to adequately plead fraud under Federal Rule of Civil Procedure 9(b). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. On appeal Coward attempts to revive various claims that the district court dismissed in her first and second amended complaints, which were not included in the fourth amended complaint. However: [I]t is the law of this circuit that a plaintiff waives all claims alleged in a dismissed complaint which are not realleged in an amended complaint. . . . [T]he amended complaint supersedes the original, the latter being treated thereafter as non-existent. If a plaintiff fails to include dismissed claims in an amended complaint, the plaintiff is deemed to have waived any error in the ruling dismissing the prior complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012) (en banc) (citations and internal quotation marks omitted). For this reason, we consider only the single cause of action raised in the fourth amended complaint. 2 Coward claims that, at the time her mortgage loan was issued in 2005, an employee of Long Beach Mortgage Company—the original issuer of the mortgage loan—fraudulently certified Coward’s husband’s signature, although he was working as a contractor in Iraq at the time and was unavailable to sign the loan documents. Coward further alleges that the Long Beach Mortgage employee who certified her loan may have been subsequently hired by J.P. Morgan and was, therefore, acting as its “agent, employee, or independent contractor,” even though J.P. Morgan did not acquire Coward’s loan until several years after it was issued. The complaint does not allege with any particularity how the fraud occurred, nor does it explain J.P. Morgan’s involvement in any fraudulent acts that might have occurred at the issuance of the mortgage. See Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (“[A]llegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” (internal quotation marks omitted)). Because we conclude that Coward has failed to state a claim under Rule 12(b)(6), we do not address whether her claim is also barred by failure to exhaust administrative remedies under FIRREA. In the absence of evidence that Coward could cure the deficiencies in her pleadings through another amended complaint, 3 the district court did not abuse its discretion in denying Coward leave to amend. See Bozzio v. EMI Grp. Ltd., 811 F.3d 1144, 1148 (9th Cir. 2016) (“We review the district court’s denial of leave to amend for abuse of discretion.” (internal quotation marks omitted)). AFFIRMED. 4
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