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Schaefer v. Robbins & Keehn

March 7, 2007

J. MICHAEL SCHAEFER, PLAINTIFF,
v.
ROBBINS & KEEHN, LLP DEFENDANT.
ROBBINS & KEEHN, LLP, COUNTERCLAIMANT,
v.
J. MICHAEL SCHAEFER, COUNTER-DEFENDANT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge

ORDER DENYING DISMISS PLAINTIFF'S COMPLAINT DEFENDANT'S MOTION TO SECOND AMENDED

On April 7, 2006, pro se plaintiff J. Michael Schaefer ("Plaintiff"), a former lawyer, 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, named "Robbins & Keehn, LLP" ("Defendant"). (Doc. No. 1.) On August 29, 2006, the Court granted Defendant's 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 Defendant's 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 Defendant and L. Scott Keehn. (Doc. No. 35.) On November 28, 2006, the Court granted with prejudice Defendant and Keehn's motion to dismiss Plaintiff's claim for intentional misrepresentation based on their alleged misrepresentation regarding Mr. Keehn's intended association with the appellate case, and granted without prejudice Defendant and Keehn's motion to dismiss Plaintiff's claim for intentional misrepresentation based on their alleged misrepresentation regarding their conflict of interest in representing Plaintiff. (Doc. No. 44.) On January 11, 2007, Plaintiff filed a second amended complaint ("SAC") alleging misrepresentation against Defendant. (Doc. No. 48.) On February 1, 2007, Defendant filed a motion to dismiss the SAC. (Doc. No. 52.) On February 26, 2007, Plaintiff filed an opposition to Defendant's motion to dismiss. (Doc. No. 60.) On March 5, 2007, Defendant filed a reply. (Doc. No. 64.)

The Court exercises its discretion to decide this matter without oral argument pursuant to Local Civil Rule 7.1(d)(1). For the following reasons, the Court DENIES Defendant's motion to dismiss Plaintiff's claim for intentional misrepresentation.

Background

Plaintiff, a disbarred attorney, represented himself in an action brought in California Superior Court by Robert Lauer and ECommerce Hotel Com, Inc. See Lauer

v. Schaefer, Case No. GIC762340, slip op. (Super. Ct. San Diego 2001). Plaintiff lost the case. See id. On or about December 10, 2001, Plaintiff hired Defendant to represent him for his appeal of Lauer v. Schaefer ("the appellate case"). (Compl. ¶¶ 3-4; FAC ¶ 4; SAC ¶ 6; Def's Mem. P's & A's Supp. Mot. Dismiss SAC, at 3 ("Def's Mem.").) Plaintiff hired Defendant upon the endorsement of Sandor Shapery. (FAC ¶ 15; SAC ¶ 9.) The California Court of Appeal denied Plaintiff's appeal on November 20, 2003. (Def.'s Mem. at 3.) Plaintiff terminated his relationship with Defendant on December 30, 2003. (Id.)

On April 7, 2006, Plaintiff brought this diversity suit for negligence, breach of contract, breach of the implied covenant of good faith and fair dealing, and intentional misrepresentation. (Compl. ¶¶ 1-15.) On June 15, 2006, Defendant filed a counterclaim alleging claims for breach of contract, account stated, open book account, and quantum meruit. (Countercl. ¶¶ 1-24 (Doc. No. 7.).) On August 29, 2006, the Court granted Defendant's 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 Defendant's motion to dismiss the claim for intentional misrepresentation, without prejudice. On September 28, 2006, Plaintiff filed a FAC alleging intentional misrepresentation against Defendant and L. Scott Keehn. (FAC ¶¶ 1-17.) On November 28, 2006, the Court granted with prejudice Defendant and Keehn's motion to dismiss Plaintiff's claim for intentional misrepresentation based on their alleged misrepresentation regarding Mr. Keehn's intended association with the appellate case, and granted without prejudice Defendant and Keehn's motion to dismiss Plaintiff's claim for intentional misrepresentation based on their alleged misrepresentation regarding their conflict of interest in representing Plaintiff. Plaintiff filed a SAC alleging intentional misrepresentation against Defendant on January 11, 2007.

Discussion

A. Legal Standards

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).

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. 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 ...


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