ORDER AND FINDINGS AND RECOMMENDATIONS
This case came before the court on July 31, 2009, for hearing of defendants' amended motion to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e) (Doc. No. 14). Also before the court at that time were defendants' amended motion to strike portions of plaintiffs' complaint (Doc. No. 15) and defendants' request for judicial notice (Doc. No. 17). Natilee S. Riedman, Esq. appeared for moving defendants Mortgage Electronic Registration Systems, Inc., ETS Services, LLC, and GMAC Mortgage, LLC. Plaintiffs, who are proceeding pro se in this action, made no appearance at the hearing.
Upon consideration of all written materials filed in connection with the motions, the arguments at the hearing, and the entire file, the undersigned recommends that defendants' motion to dismiss be granted and this action be dismissed with prejudice.
Plaintiffs Bonita M. Tademy and Harold L. Tademy filed their complaint in Sacramento County Superior Court on April 1, 2009. (Def'ts' Notice of Removal (Doc. 1), Ex. A.) Defendant GMAC Mortgage, LLC was the first of the three removing defendants to receive a copy of the summons and complaint. (Id. at 2.) On May 19, 2009, within thirty days after defendant GMAC Mortgage, LLC was served with process, the case was removed to federal court on the ground that plaintiffs' complaint alleges claims arising under federal statutes. (Id.) Specifically, plaintiffs' complaint alleges violations of the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et seq., and the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 1367, in connection with the mortgage loan obtained by plaintiffs in 2006. (Id., Ex. A at ¶¶ 10, 23, 24.)
There is no evidence that plaintiffs have effected service of process on named defendants Greenpoint Mortgage Funding, Inc. and Marin Conveyancing Corp., and plaintiffs have not amended their complaint to substitute named entities or parties for the defendants sued as DOES I-X.
On May 26, 2009, defendants filed their initial motions. Plaintiffs filed no written opposition to the motions. Moving defendants filed and served a notice of plaintiffs' failure to file opposition. (Doc. Nos. 19, 20.) Plaintiffs did not respond to defendants' notice and made no appearance at the hearing on defendants' motion. The court's docket reflects that plaintiffs have filed nothing with this court since the action was removed from state court on May 19, 2009.
Plaintiffs' failure to appear at the hearing on defendants' motion may, in the discretion of the court, be deemed a statement of no opposition to the granting of the motion. See Local Rule 230 (i). An inference of non-opposition in the present case is supported by plaintiffs' failure to file written opposition to the motion. See Local Rule 230(c) ("No party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party.").
LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTION TO DISMISS
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
With regard to claims of fraud, "the circumstances constituting fraud . . . shall be stated with particularity." Fed. R. Civ. P. 9(b). "Rule 9(b) serves not only to give notice to defendants of the specific fraudulent conduct against which they must defend, but also 'to deter the filing of complaints as a pretext for the discovery of unknown wrongs, to protect [defendants] from the harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.'" Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (quoting In re Stac Elec. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir. 1996)). Thus, pursuant to Rule 9(b), a plaintiff alleging fraud at a minimum must plead evidentiary facts such as the time, place, persons, statements and explanations of why allegedly misleading statements are misleading. In re GlenFed, Inc. Sec. Litig., 42 F. 3d 1541, 1547 n.7 (9th Cir. 1994); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003); Fecht v. Price Co., 70 F.3d 1078, 1082 (9th Cir. 1995).*fn1
Plaintiffs' complaint begins with conclusory allegations of deceptive practices, misrepresentations, fraud, civil conspiracy, unlawful acts, unethical business practices, and breach of fiduciary duty, as well as violations of TILA and RESPA. (Compl. ¶¶ 9-27.) These general allegations are followed by thirteen numbered claims, some of which do not appear to state any cognizable federal or state claim for relief. For example, plaintiffs' first-numbered claim for relief is titled "Suitability" and consists of a two-paragraph argument that all defendants had "a professional duty and obligation to the plaintiff to ensure that only those loans which were most suitable to her personal financial condition, the property at issue and her financial well-being would be presented and offered to her." (Id. ¶ 38.) Plaintiffs claims that appear to arise under state law include negligence per se, breach of fiduciary duty, negligent misrepresentation, intentional misrepresentation, breach of the covenant of good faith and fair dealing, failure to produce the note to prove real party in interest, unfair lending practices, "restoral" of good credit, violation of new state law requirements related to notices of default and notices of trustee sale, quiet title, and wrongful foreclosure. (Id. ¶¶ 44-98.) Few factual allegations in support of plaintiffs' claims are set forth in the complaint.
Plaintiffs seek compensatory damages of $25,000.00, punitive damages of $25,000.00, and unspecified statutory damages. Plaintiffs also seek temporary and permanent injunctive relief "to maintain the status quo," but have not filed any ...