FINDINGS AND RECOMMENDATIONS
On January 25, 2011, plaintiff, proceeding pro se, filed a complaint to quiet title. The case was referred to the undersigned pursuant to Local Rule 302(c)(21).
On March 1, 2011, defendant filed a motion to dismiss plaintiff's claims with prejudice pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6) on the grounds that plaintiff's complaint fails to satisfy the notice requirements of Rule 8(a) and fails to state any legally cognizable claim upon which relief may be granted. The record reflects that defendant's motion was properly served on the pro se plaintiff. On April 1, 2011, the case came before the court for hearing on defendant's properly noticed motion. Eric Alderete, Esq. appeared telephonically for the defendant. No appearance was made by or on behalf of plaintiff.
Upon consideration of all written materials filed in connection with the motion and the entire file, the undersigned recommends that defendant's motion to dismiss be granted and this action be dismissed with prejudice.
LEGAL STANDARDS APPLICABLE TO MOTIONS 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).
Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). The plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims. 733 F.2d at 649. A complaint must also contain "a short and plain statement of the grounds for the court's jurisdiction" and "a demand for the relief sought." Fed. R. Civ. P. 8(a)(1) & 8(a)(3).
Plaintiff's complaint, at best, is largely undecipherable. Therein, plaintiff alleges the action involves real property located at 719 Antiquity Drive, in Fairfield, California. Plaintiff apparently contests the foreclosure of her property and contends that full disclosure of contract under the Truth in Lending Act ("TILA") was not made. Other than these contentions, the bulk of plaintiff's complaint consists of jargon and verbiage drawn from some unidentified source.
PLAINTIFF'S FAILURE TO OPPOSE DEFENDANT'S MOTION
Defendant filed its motion to dismiss on March 1, 2011. Plaintiff did not file timely written opposition to the motion, did not appear at the hearing held on April 1, 2011, and did not file any opposition after the hearing. It appears from the court's docket for this case that plaintiff has filed nothing in this action since it was initiated by plaintiff on January 25, 2011. Plaintiff's failure to appear at the properly noticed hearing on defendant's motion may, in the discretion of the court, be deemed a statement of no opposition to the granting of the motions. See Local Rule 230(i). An inference of non-opposition in the present case is supported by plaintiff's failure to file written opposition and failure to appear at the hearing. 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.").
The undersigned finds that plaintiff's failure to file written opposition and failure to appear at the hearings on defendant's motion to dismiss, considered together with plaintiff's failure to participate in this action since its initiation, should be deemed a statement of no opposition to the granting of defendant's motion. Nonetheless, in light of plaintiff's pro se status, the undersigned has reviewed defendant's arguments and addresses them below.
Defendant has requested judicial notice of documents related to the matters at issue. (Doc. No. 5.) Defendant's request for judicial notice will be granted pursuant to Federal Rule of Evidence 201. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (on a motion to dismiss, court may consider matters of public record); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986) (on a ...