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Day v. American Home Mortgage Servicing

August 10, 2010

CHARLES DAY, PLAINTIFF,
v.
AMERICAN HOME MORTGAGE SERVICING, INC., AND DOES 1-50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S SECOND-AMENDED COMPLAINT AND DENYING ITS MOTION FOR A MORE DEFINITE STATEMENT*fn1

Defendant moves for dismissal of Plaintiff's Second-Amended Complaint (incorrectly titled "Third-Amended Complaint") with prejudice under Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), arguing Plaintiff has failed to allege sufficient facts to state viable claims. Defendant moves in the alternative for a more definite statement under Federal Rule of Civil Procedure 12(e) ("Rule 12(e)"). For the reasons stated below, Defendant's dismissal motion is granted and denied in part, and Defendant's Rule 12(e) motion is denied.

I. LEGAL STANDARD

A. Standard for a Motion to Dismiss under Rule 12(b)(6)

A Rule 12(b)(6) dismissal motion tests the legal sufficiency of the claims alleged in the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a)(2). The complaint must "give the defendant fair notice of what the [plaintiff's] claim is and the grounds upon which relief rests...." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Dismissal of a claim under Rule 12(b)(6) is appropriate only where the complaint either 1) lacks a cognizable legal theory, or 2) lacks factual allegations sufficient to support a cognizable legal theory. Balistreri v. Pacific Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). To avoid dismissal, the plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 547.

In deciding a Rule 12(b)(6) motion, the material allegations of the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. See al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, neither conclusory statements nor legal conclusions are entitled to a presumption of truth. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); Twombly, 550 U.S. at 555. "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

If a Rule 12(b)(6) motion is granted, the "district court should grant leave to amend even if no request to amend the pleadings is made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)(quoting Doe v. U.S., 58 F.3d 484, 497 (9th Cir. 1995)).

B. Standard for a Motion for a More Definite Statement

"[A] party may move for a more definite statement of a pleading [under Rule 12(e) when the pleading]... is so vague or ambiguous that the party cannot reasonably prepare a response." A Rule 12(e) motion should not be granted unless the challenged pleading is so indefinite that the responding party cannot determine the nature of the claim(s) asserted. See Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F.Supp. 940, 949 (E.D.Cal. 1981).

II. DISCUSSION

Defendant filed earlier dismissal motions challenging Plaintiff's original Complaint and his First-Amended Complaint, which Plaintiff incorrectly titled "Second-Amended Complaint." On June 17, 2010, Plaintiff subsequently filed what he titled his Third-Amended Complaint, which is actually his Second-Amended Complaint ("Second-Amended Complaint"). Three state law claims remain in the Second-Amended Complaint: violation of the Rosenthal Fair Debt Collections Practices Act ("Rosenthal Act"), breach of the implied covenant of good faith and fair dealing, and violation of California Business & Professions Code section 17200.

A. The Rosenthal Act

Defendant seeks dismissal of Plaintiff's Rosenthal Act claim, arguing "[a]lthough Plaintiff alleges otherwise... [Defendant] is not considered a 'debt collector'-[Defendant] is merely the loan servicer." (Def.'s Mot. to Dismiss ("Mot.") 5:12-13.) Plaintiff counters, "[he] has properly plead that Defendant violated the Rosenthal Act...." (Pl.'s Opp. to Mot. to Dismiss ("Opp'n") 4:1-2.) Defendant further argues in its reply brief that this claim should be dismissed for lacking the required specificity. (Def.'s Reply to Pl.'s Opp'n to Mot. to Dismiss ("Reply") 1:4-13.) Since Defendant's specificity argument was made for the first time in its reply brief, this argument need not be considered. See United States v. Anderson, 472 F.3d 662, 668 (9th Cir. 2006) ("Issues raised for the first time in an ...


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