The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, who is proceeding pro se, brings this civil action. This action was removed to this court from the Siskiyou County Court on March 2, 2011. Pending before the court is defendant's motion to dismiss (Doc. 7). No timely opposition was filed, so the hearing on the motion was taken off calendar pursuant to Local Rule 230. Plaintiff did file an untimely opposition to the motion (Doc. 11), which the court has read and considered.
Plaintiff originally filed this action in the small claims court of Siskiyou County. After receiving service, defendant removed the action to this court. Following removal, plaintiff filed an amended complaint in order to further set forth his claim. In his amended complaint, plaintiff alleges that following the Deepwater Horizon oil spill, the defendant solicited help from citizens for possible solutions. Plaintiff responded to defendant's call for help "forego[ing] any intellectual property protection." Plaintiff alleges that defendant's solicitation and acceptance of plaintiff's ideas created an implied contract. He then billed defendant for payment. After defendant failed to respond to the billing, he proceeded with this legal action. His claims are for fraud, violations of the California Consumer Legal Remedies Act (CLRA), and breach of implied contract.*fn1
Defendant filed the motion to dismiss pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). Defendant argues plaintiff's complaint fails to state a claim, and fails to meet the heightened pleading standard required to state a fraud claim. In plaintiff's untimely response to the motion, he fails to dispute any of defendant's arguments. Instead, he simply points out that he is proceeding in pro per and argues he cannot compete with the sophistication of trained lawyers.
In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Bell Atl. Corp., 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Bell Atl. Corp., 550 U.S. at 557).
To determine whether a complaint states a claim upon which relief can be granted, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
Defendant argues Louisiana, not California, law applies to this case. As such, plaintiff's claims under the CLRA cannot continue, and his other claims must be evaluated under Louisiana law. As discussed below, whether Louisiana or California law applies does not impact the claims greatly. Except for the CLRA claims, the law for ...