Macedo v. Deutsche Bank National Trust Company et al, No. 3:2013cv03068 - Document 11 (S.D. Cal. 2014)
Court Description: ORDER granting with leave to amend Deutsche Bank, One West, and MERS' 3 Motion to Dismiss; terminating as moot Aztec's 7 Motion to Dismiss for Failure to State a Claim. Court grants leave to amend. If Pla wishes to file an amended complaint, he must do so by 5/8/204. Signed by Judge Thomas J. Whelan on 4/17/2014. (jah)
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Macedo v. Deutsche Bank National Trust Company et al Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICARDO MACEDO, 12 Case No. 13-cv-3068-W(BGS) Plaintiff, 13 v. 14 (1) GRANTING DEUTSCHE BANK, ONE WEST, AND MERS’ MOTION TO DISMISS [DOC. 3]; AND 15 16 17 DEUTSCHE BANK NATIONAL TRUST COMPANY, et al., 18 ORDER: Defendants. (2) TERMINATING AZTEC’S MOTION TO DISMISS AS MOOT [DOC. 7.] 19 20 On August 16, 2013, Plaintiff Ricardo Macedo commenced this foreclosure 21 action against Defendants Deutsche Bank National Trust Company (“Deutsche 22 Bank”), One West Bank, F.S.B. (“One West”), Mortgage Electronic Registration 23 Systems, Inc. (“MERS”), and Aztec Foreclosure Corporation (“Aztec”) in the San 24 Diego Superior Court. Thereafter, Defendants removed this action to this Court. 25 Deutsche Bank, One West, and MERS now collectively move to dismiss Plaintiff’s First 26 Amended Complaint (“FAC”) under Federal Rule of Civil Procedure 12(b)(6). Aztec 27 also independently moves to dismiss. Plaintiff opposes both motions. 28 // -1- 13cv3068 Dockets.Justia.com 1 The Court decides the matter on the papers submitted and without oral 2 argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS 3 WITH LEAVE TO AMEND Deutsche Bank, One West, and MERS’ motion to 4 dismiss, and TERMINATES AS MOOT Aztec’s motion to dismiss. 5 6 I. LEGAL STANDARD 7 The court must dismiss a cause of action for failure to state a claim upon which 8 relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 9 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 10 732 (9th Cir. 2001). The court must accept all allegations of material fact as true and 11 construe them in light most favorable to the nonmoving party. Cedars-Sanai Med. Ctr. 12 v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). Material 13 allegations, even if doubtful in fact, are assumed to be true. Bell Atl. Corp. v. Twombly, 14 550 U.S. 544, 555 (2007). However, the court need not “necessarily assume the truth 15 of legal conclusions merely because they are cast in the form of factual allegations.” 16 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal 17 quotation marks omitted). In fact, the court does not need to accept any legal 18 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 19 “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 20 detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his 21 ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic 22 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 23 (internal citations omitted). Instead, the allegations in the complaint “must be enough 24 to raise a right to relief above the speculative level.” Id. Thus, “[t]o survive a motion 25 to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state 26 a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 27 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 28 content that allows the court to draw the reasonable inference that the defendant is -2- 13cv3068 1 liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a 2 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant 3 has acted unlawfully.” Id. A complaint may be dismissed as a matter of law either for 4 lack of a cognizable legal theory or for insufficient facts under a cognizable theory. 5 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). 6 Generally, courts may not consider material outside the complaint when ruling 7 on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 8 1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the 9 complaint whose authenticity is not questioned by parties may also be considered. 10 Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statutes on 11 other grounds). Moreover, the court may consider the full text of those documents, 12 even when the complaint quotes only selected portions. Id. It may also consider 13 material properly subject to judicial notice without converting the motion into one for 14 summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 15 16 II. DISCUSSION 17 A. 18 When a claim is “grounded in fraud and its allegations fail to satisfy the Federal Rule of Civil Procedure 9(b) 19 heightened pleading requirements of Rule 9(b), a district court may dismiss the . . . 20 claim.” Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003). To 21 satisfy the particularity requirement of Rule 9(b), “[a]verments of fraud must be 22 accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” 23 Vess, 317 F.3d at 1106 (9th Cir.2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 24 (9th Cir.1997)). Plaintiffs must plead enough facts to give defendants notice of the 25 time, place, and nature of the alleged fraud together with an explanation of the 26 statement and why it was false or misleading. See id. at 1107. Averments of fraud must 27 be pled with sufficient particularity as to give the defendants notice of the 28 circumstances surrounding an allegedly fraudulent statement. See In re GlenFed, Inc. -3- 13cv3068 1 Sec. Litig., 42 F.3d 1541, 1547 (9th Cir.1994) (superceded by statute on other grounds 2 as stated in Ronconi v. Larkin, 253 F.3d 423, 429 n.6 (9th Cir.2001)). The 3 circumstances constituting the alleged fraud must “be specific enough to give 4 defendants notice of the particular misconduct . . . so that they can defend against the 5 charge and not just deny that they have done anything wrong.” Vess, 317 F.3d at 1106 6 (quoting Bly–Magee v. California, 236 F.3d 1014, 1019 (9th Cir.2001)) (internal 7 quotation marks omitted). “Malice, intent, knowledge, and other conditions of a 8 person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). 9 Plaintiff’s 38-page FAC is difficult to decipher. It appears that Plaintiff brings this 10 action in relation to some real property that he owns or owned. He alleges that 11 someone fraudulently purported to assign the deed of trust that secured his loan from 12 his lender to Deutsche Bank. (See FAC ¶ 26.) That interpretation is based on the 13 following allegation in the FAC: “The Plaintiff does not assert any right was created in 14 her [sic] favor by the late purported ‘transfer’ and instead asserts that any claims of 15 transfer of the interest in the Note and Deed of Trust . . . is [sic] evidence of the 16 falsification of that instrument and serves to establish that as yet unidentified third 17 party agents and employees of . . . [Deutsche] have engaged in a pattern of fraud and 18 deceit.” (Id.) Plaintiff further alleges that “rogue employees” of Deutsche Bank 19 executed “fabrications and forgeries” purporting to transfer his lender’s interest in that 20 trust. (FAC ¶ 31.) Throughout the FAC, Plaintiff also references “criminal violations,” 21 “the Mortgage Boom Era,” the Internal Revenue Code, and other bits of information 22 with questionable relevance to this action. (See FAC ¶¶ 2, 18, 24–25.) 23 The important allegation in Plaintiff’s FAC is the one alleging that agents of 24 Deutsche Bank fabricated the instrument assigning the deed of trust to Deutsche Bank. 25 (FAC ¶ 31.) Each of Plaintiff’s causes of action incorporates this allegation. (Id. at 26 31:13–42:26.) As a result, each of Plaintiff’s causes of action is grounded in fraud. See 27 Vess, 317 F.3d at 1103-04 (citing In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1404-05 28 (9th Cir.1996)) (“In cases where fraud is not a necessary element of a claim, a plaintiff -4- 13cv3068 1 may choose nonetheless to allege in the complaint that the defendant has engaged in 2 fraudulent conduct[.] In that event, the claim is said to be ‘grounded in fraud’ or to 3 ‘sound in fraud,’ and the pleading of that claim as a whole must satisfy the particularity 4 requirement of Rule 9(b).”) 5 Plaintiff fails to plead sufficient factual matter to give Defendants notice of the 6 “time, place, and nature of the alleged fraud together with an explanation of the 7 statement and why it was false or misleading.” See Vess, 317 F.3d at 1106. His 8 averment of fraud lacks the required “‘who, what, when, where, and how’ of the 9 misconduct charged.” See id. (quoting Cooper, 137 F.3d at 627). Therefore, the Court 10 concludes that dismissal of Plaintiff’s FAC is appropriate for his failure to meet Rule 11 9(b)’s heightened pleading standard. 12 13 B. Federal Rule of Civil Procedure 8 14 Rule 8 requires each plaintiffs to “plead a short and plain statement of the 15 elements of his or her claim.” Bautista v. Los Angeles Cnty, 216 F.3d 837, 849 (9th Cir. 16 2000). Rule 8 requires each allegation to be “simple, concise, and direct.” Fed. R. Civ. 17 P. 8(d)(1). Where the allegations in a complaint are “argumentative, prolix, replete 18 with redundancy and largely irrelevant,” the complaint is properly dismissed for failure 19 to comply with Rule 8(a). McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996); 20 see also Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981) 21 (affirming dismissal of complaint that was “verbose, confusing and almost entirely 22 conclusory”). 23 “A complaint that fails to comply with Rule 8 may be dismissed pursuant to 24 Federal Rule of Civil Procedure 41(b).” Bravo v. Cnty. of San Diego, No. C 12-06460, 25 2014 WL 555195, at *2 (N.D. Cal. Feb. 10, 2014). “The propriety of dismissal for 26 failure to comply with Rule 8 does not depend on whether the complaint is wholly 27 without merit.” McHenry, 84 F.3d at 1179. “Even if the factual elements of the cause 28 of action are present, but are scattered throughout the complaint and are not organized -5- 13cv3068 1 into a ‘short and plain statement of the claim,’ dismissal for failure to satisfy Rule 8 is 2 proper.” Bravo, 2014 WL 555195, at *2 (citing McHenry, 84 F.3d at 1178). 3 As discussed above, Plaintiff’s FAC is riddled with ambiguous allegations that are 4 confusing, redundant, and oftentimes irrelevant. Upon reviewing the FAC, the Court 5 had immense difficulty understanding the important points in Plaintiff’s case. Though 6 it very well is possible that the factual elements of the causes of action asserted are 7 present, they are presented in a rather undecipherable manner. Thus, the FAC as 8 currently constructed also fails to satisfy Rule 8’s requirement for a short and plain 9 statement of Plaintiff’s case. Consequently, the Court also concludes that dismissal of 10 Plaintiff’s FAC is appropriate based on his failure to satisfy Rule 8. 11 12 III. CONCLUSION & ORDER 13 In light of the foregoing, the Court GRANTS WITH LEAVE TO AMEND 14 Deutsche Bank, One West, and MERS’ motion to dismiss (Doc. 3), and 15 TERMINATES AS MOOT Aztec’s motion to dismiss (Doc. 7). If Plaintiff wishes to 16 file an amended complaint, he do so no later than May 8, 2014. 17 IT IS SO ORDERED. 18 19 DATE: April 17, 2014 20 HON. THOMAS J. WHELAN United States District Court Southern District of California 21 22 23 24 25 26 27 28 -6- 13cv3068
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