United States District Court, S.D. California
October 20, 2005.
CHARLES R. JORDAN, an individual, Plaintiff,
COX v. SHELL OIL COMPANY, PLUMBING RECOVERY CENTER; Manager, KATHY CHENOWETH; Claims Manager, JANICE CHASE; and DOES 1 through 10 inclusive, Defendant.
The opinion of the court was delivered by: MARILYN HUFF, Chief Judge
ORDER DISMISSING PLAINTIFF'S ACTION PURSUANT TO FED. R. CIV. P.
12(b)(1), AND ALTERNATIVELY, GRANTING DEFENDANTS' MOTION TO
On August 24, 2005, pro se Plaintiff Charles R. Jordan filed a
petition for reimbursement of expenses, relating to Defendant
Consumer Plumbing Recovery Center's ("CPRC") administration of
claims pursuant to a settlement agreement reached in the matter
of Cox v. Shell Oil, Civ. A. No. 18844, 1995 WL 775363
(Tenn.Ch. Nov. 17, 1997). On September 19, 2005, Defendants CPRC
(erroneously sued as Cox v. Shell Oil, Plumbing Recovery
Center), Kathy Chenoweth, and Janice Chase (collectively
"Defendants") filed a Rule 12(b) motion to dismiss, or in the
alternative, for a more definite statement. The motions are
submitted on the papers without oral argument pursuant to Civil
Local Rule 7.1(d)(1). For the reasons given below, the Court
dismisses the action under Federal Rule of Civil Procedure
12(b)(1) with leave to amend, and alternatively, the Court GRANTS
Defendants' motion to dismiss with leave to amend if Plaintiff is
able to cure the deficiencies of his pleading.
According to Plaintiff's petition, Plaintiff owns a single
family residence in the Emerald Point Development in Oceanside,
California. (Pet. at 1-2.) Plaintiff contacted Defendants on June
7, 2005 to report a sudden burst of polybutylene pipes in
Plaintiff's home. (Id. at 1.) Plaintiff had filed complaints
with Defendant CPRC on three earlier occasions in 1992, 1993, and
1995. (Id. at 2.) Defendant CPRC denied Plaintiff's claims on
each occasion. (Id.) The Court takes judicial notice of the
Final Order in Cox v. Shell Oil, Civ. A. No. 18844, 1995 WL
775363 (Tenn.Ch. Nov. 17, 1997) that approved settlement of a
nationwide class action lawsuit regarding polybutylene pipes.
(Doc. No. 6, Ex. A.) Plaintiff alleges a denial of his right to
due process, fraud, and breach of contract against Defendants who
were in charge of managing and releasing funds to replace
polybutylene piping under the Cox state court settlement. (Pet.
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) states that a
complaint may be dismissed for "lack of jurisdiction over the
subject matter." Fed.R.Civ.P. 12(b)(1). District courts have
subject matter jurisdiction to hear cases only when a federal
question is presented, 18 U.S.C. § 1331, or when there is
diversity of citizenship between the parties and the matter in
controversy meets the minimum amount required by statute.
18 U.S.C. § 1332.
In evaluating whether a sufficient federal question has been
presented, typically a failure to state a federal claim is not a
jurisdictional defect, but one based on the insufficient merits
of the claim. Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 89 (1998). Nonetheless, dismissal based on a lack of
federal question jurisdiction may be appropriate where the claim
is "so insubstantial or implausible . . . as to not involve a
federal controversy." Id. (quoting Oneida Indian Nation of New
York v. Oneida County, 414 U.S. 661, 666 (1974)); see also Roberts v.
Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).
Here, based on the facts alleged in the Plaintiff's complaint,
the Court lacks jurisdiction over the case. Plaintiff fails to
allege any state action that would give rise to a sufficient
federal question. Plaintiff's mere discussion of the importance
of due process under the federal Constitution is "too attenuated
or collateral to provide federal [question] jurisdiction." Smith
v. Grimm, 534 F.2d 1346, 1351 (9th Cir. 1976). Regarding federal
jurisdiction through diversity, the Plaintiff alleges that as of
the time of his filing, he has suffered damages in the amount of
$41,204.60. This amount fails to meet the amount in controversy
requirement stated in 18 U.S.C. 1332 (a). Therefore, because
Plaintiff fails to raise a substantial federal question or meet
the requirements for diversity jurisdiction, the Court does not
have subject matter jurisdiction over the case.
B. Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of
the claims in the complaint. A claim will only be dismissed if
"it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Allegations of
material fact in plaintiff's complaint shall be "taken as true
and construed in the light most favorable to the nonmoving
party." Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484
(9th Cir. 1995); Tanner v. Heise, 879 F.2d 572, 576 (9th Cir.
1989). In considering whether the plaintiff has stated a claim
which would entitle him to relief, the Court may consider matters
of public record. Shaw v. Hahn, 56 F.3d 1128, 1129n. 1 (9th
With these standards in mind, the Court now turns its attention
to Plaintiff's allegations contained in his complaint. a. Lack of State Action in Due Process Claim
Plaintiff first alleges that Defendants "violated [his] civil
rights to federal due process." (Pet. at 1.) The
Fourteenth Amendment of the U.S. Constitution provides that "[n]o state
shall . . . deprive any person of life, liberty, or property,
without due process of law." US. Const. amend. XIV, § 1. Central
to the protection provided under the Due Process clause is that
it only applies to state governmental entities, and does not
apply to conduct of private actors. Apao v. Bank of New York,
324 F.3d 1091, 1093 (9th Cir. 2003). In fact, the Plaintiff's
complaint acknowledges the necessity of state action, noting that
"[t]he state must afford the opportunity to be heard at a
meaningful time and in a meaningful manner." (Pet. at 2.)
Here, Plaintiff alleges that CPRC denied him due process in its
administration of his claims for damages. (Id.) In doing so,
however, Plaintiff fails to allege that CPRC is acting under the
color of state law. The Court takes judicial notice that CPRC is
a private, nonprofit corporation, certified by the State of
Texas. Shaw, 56 F.3d at 1129n. 1. (Doc. No. 6, Ex. D.)
Therefore, because Plaintiff fails to allege that the CPRC was
acting under the color of state authority in denying him due
process, the Court grants the motion to dismiss the due process
Plaintiff next alleges fraud. In order to properly allege fraud
under the Federal Rules of Civil Procedure, a plaintiff must
state the conditions of the alleged fraud "with particularity."
Fed.R.Civ.P. 9(b). The Ninth Circuit interprets Federal Rule
of Civil Procedure 9(b) to mean that the allegations 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." Semegen v. Weidner,
780 F.2d 727, 731 (9th Cir. 1985). While statements of the "time, place
and nature" of the alleged fraudulent activity are sufficient,
mere "conclusory" allegations of fraud are not. Moore v. Kayport
Package Express, 885 F.2d 531, 540 (9th Cir. 1989). Plaintiff fails to meet the standards for a properly alleged
claim of fraud. In his complaint, Plaintiff fails to state any of
the circumstances of the alleged fraudulent activity. Plaintiff's
discussion of the alleged fraud instead is limited to a mere
"conclusory" allegation. Id. Therefore, because Plaintiff fails
to allege fraud with particularity, the Court grants the
Defendants' motion to dismiss.
c. Breach of Contract
Plaintiff's final allegation is for breach of contract.
Generally, the elements for a breach of contract cause of action
are: (1) the existence of a contract between the parties; (2)
performance by the plaintiff or excuse for nonperformance; (3)
breach by the defendant; and (4) damages. See, e.g., First
Commercial Mortgage v. Reece, Cal. App. 4th 731, 745 (2001).
Plaintiff fails to allege any facts to support a breach of
contract claim. In his complaint, Plaintiff simply alleges that
Defendants have breached a contract. He does not state the
existence of a specific contract, the performance due under the
contract, or how such a contract has been breached. Lacking such
factual allegations, the Court must dismiss Plaintiff's claim for
breach of contract.
Additionally, it is worth noting that even if Plaintiff were
able to plead sufficient facts for a breach of contract claim,
absent some independent basis for federal jurisdiction, the Court
does not have general jurisdiction over a breach of a state court
settlement agreement. Kokkonen v. Guardian Life Ins.,
511 U.S. 375, 381-82 (1994). Therefore, the Court dismisses Plaintiff's
claim for breach of contract because he fails to state sufficient
factual allegations and because he does not allege some
independent basis for federal jurisdiction.
C. Federal Rule of Civil Procedure 15(a)
Under Federal Rule of Civil Procedure 15(a), "a party may amend
the party's pleading once as a matter of course at any time
before a responsive pleading is served." Fed.R.Civ.P. 15(a).
Therefore, Plaintiff may file an amended complaint to address the
insufficiencies of his complaint. Conclusion
For the reasons discussed, the Court dismisses Plaintiff's
petition under Federal Rule of Civil Procedure 12(b)(1).
Alternatively, the Court GRANTS Defendants' motion to dismiss
with leave to amend to see if Plaintiff, pro se, can allege a set
of facts necessary to state a claim. Plaintiff may submit an
amended complaint that addresses the deficiencies of the pleading
set forth above no later than 30 days from the date this Order is
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.