The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING WITH PREJUDICE IN PART AND GRANTING WITHOUT PREJUDICE IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT
On April 7, 2006, pro se Plaintiff J. Michael Schaefer ("Plaintiff") filed a complaint alleging breach of contract, negligence, breach of the implied covenant of good faith and fair dealing, and intentional misrepresentation against Defendant Robbins & Keehn, APC ("Robbins"), named "Robbins & Keehn, LLP." (Doc. No. 1.) On August 29, 2006, the Court granted Robbins' motion to dismiss the claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and negligence, with prejudice, for being time barred by California's statute of limitations. (Doc. No. 33.) The Court also granted Robbins' motion to dismiss the claim for intentional misrepresentation, without prejudice, for failure of Plaintiff to plead with particularity the elements of the claim, and granted Plaintiff 30 days to file an amended complaint. (Id.) On September 28, 2006, Plaintiff filed a first amended complaint ("FAC") alleging intentional misrepresentation against Robbins and L. Scott Keehn (collectively "Defendants"). (Doc. No. 35.) On October 18, 2006, Defendants filed a motion to dismiss the FAC pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 36.) On October 19, 2006, Defendants filed an amended motion to dismiss the FAC. (Doc. No. 37.) On November 14, 2006, Plaintiff filed an opposition to the motion to dismiss, which contained a proposed Second Amended Complaint ("SAC"). (Doc. No. 42.) Defendants filed a reply to Plaintiff's opposition on November 16, 2006. (Doc. No. 39.)
On November 27, 2006, the Court held a hearing on the motion to dismiss. Plaintiff was represented at the hearing by Mr. Schaefer, and Defendants were represented by Mr. Keehn and Leslie Keehn. For the following reasons, the Court GRANTS WITHOUT PREJUDICE Defendants' motion to dismiss Plaintiff's claim for intentional misrepresentation.
On December 10, 2001, Plaintiff hired Defendants to represent him in his appeal from a civil judgment entered against him in California Superior Court, Lauer v. Schaefer, Case No. GIC 762340 ("the appellate case"). (Compl. ¶¶ 3-4; FAC ¶ 4; Def's First Amended Mem. P's & A's in Support of Mot. to Dismiss FAC, Exh. 1, at 1 ("Def's Mem.")). Plaintiff hired Defendants upon the endorsement of Sandor Shapery. (FAC ¶ 15.) During oral argument, Plaintiff stated that he had represented himself during the Lauer trial, and that he had called Shapery as a witness during the trial.
The California Court of Appeal denied Plaintiff's appeal on November 20, 2003.
(Request for Judicial Notice, Exh. 2, at 3. (Doc. No. 5.)) Plaintiff terminated his relationship with Defendants on December 31, 2003. (Id.) He then pursued a petition for review in the California Supreme Court through new counsel. (Id.) The California Supreme Court denied his appeal on February 18, 2004. (Id.)
Plaintiff brought this action for negligence, breach of contract, breach of the implied covenant of good faith and fair dealing, and intentional misrepresentation on April 7, 2006. (Compl. ¶¶ 1-15.) The Court granted Robbins' motion to dismiss the claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and negligence, with prejudice, and Robbins' motion to dismiss the claim for intentional misrepresentation, without prejudice, on August 29, 2006. Plaintiff filed a FAC alleging intentional misrepresentation against Defendants on September 28, 2006. (FAC ¶¶ 1-17.) The intentional misrepresentation claim is based on two alleged misrepresentations: (1) that Defendants intentionally misrepresented Mr. Keehn's intended association with the appellate case; and (2) that Defendants intentionally misrepresented an alleged conflict of interest in representing Schaeffer.
1. Fed. R. Civ. P. 12(b)(6)
A motion to dismiss for failure to state a claim pursuant to section 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims in the complaint. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Rule 12(b)(6) permits dismissal of a claim either where that claim lacks a cognizable legal theory, or where insufficient facts are alleged to support plaintiff's theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering the sufficiency of a complaint under Rule 12(b)(6), courts cannot grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In resolving a Rule 12(b)(6) motion, the court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337--338 (9th Cir. 1996). A court should be particularly liberal in construing "inartful pleading" by parties appearing pro se. See Hughes v. Rowe, 449 U.S. 5, 9 (1980).
Dismissal is proper, however, if a complaint is vague, conclusory, and fails to set forth any material facts in support of the allegation. See North Star Intern. v. Arizona Corp. Com'n, 720 F.2d 578, 583 (9th Cir. 1983). Furthermore, a court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). If a complaint is found to fail to state a claim, the court should grant leave to amend unless it determines that the pleading could not possibly be cured by the allegation of other facts, or if plaintiff has failed to plead with particularity after repeated opportunities. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1108 (9th Cir. 2003); Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995).
As a general matter, a court may only consider the pleadings and judicially noticed facts in deciding a 12(b)(6) motion. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir. 1990). Material that is properly attached to the complaint may properly be considered for purposes of the motion to dismiss without converting the motion into one for summary judgment. See Hal Roach Studios, Inc., 896 F.2d at 1555 n.19. Also, a court may consider documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleading. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). This doctrine extends to situations in which the plaintiff's claim depends on the ...