The opinion of the court was delivered by: The Honorable David O. Carter, Judge
PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera N/A Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
None Present None Present
PROCEEDINGS: (IN CHAMBERS): ORDER DENYING MOTION TO DISMISS COUNT 1 OF THE SECOND AMENDED COMPLAINT
Before the Court is a Motion to Dismiss Count 1 of the Second Amended Complaint filed by Defendant LSI Appraisal, LLC ("LSI") and Defendant LPS Property Tax Solutions, Inc. f/k/a Fidelity National Tax Service, Inc. ("LPS") (collectively, "Defendants") ("Motion to Dismiss"). (Docket 54) The Court finds this matter appropriate for decision without oral argument. Fed R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers, the Court DENIES the Motion to Dismiss.
The Court's prior Order Granting in Part and Denying in Part Defendants' Motion to Dismiss fully recites the factual background of this case. See Docket 35 ("First LSI Order"). The FDIC, as Receiver for Washington Mutual Bank ("WaMu"), ("Plainiff") then filed a First Amended Complaint on November 23, 2011, alleging two different breach of contract claims against LSI and a breach of contract claim against FNTS. Count 1, the only new claim, alleged breach of contract against LSI with respect to appraisal services provided before October 16, 2006. First Amended Complaint ("FAC"), ¶ 30-34. Counts 2 and 3 were carried over from the original complaint and alleged breach of contract violations against LSI and FNTS, respectively, for breach of the Appraisal Outsourcing Services Agreement dated October 16, 2006 (the "Agreement").
Defendants moved to dismiss Count 1. This Court granted the motion to the extent it sought the dismissal of breach of contract claims based on Loans 3062776079 and 306151908 because, without an explicit statement in the FAC that they were written agreements, they were subject to the two year statute of limitations for breaches of contracts not founded on instruments in writing. Defendants' motion to dismiss Count 1 was denied to the extent it sought dismissal of the ten other pre-Agreement contracts. See Docket 51 ("Second LSI Order").
Plaintiff filed a Second Amended Complaint ("SAC") on February 16, 2012. Defendants again seek to dismiss Count 1, which alleges breach of contract against LSI for appraisal services provided before October 16, 2006.
Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. A plaintiff must state "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). A claim has "facial plausibility" if the plaintiff pleads facts that "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).
In resolving a Rule 12(b)(6) motion under Twombly, the Court must follow a two-pronged approach. First, the Court must accept all well-pleaded factual allegations as true, but "[t]hread-bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Nor must the Court "accept as true a legal conclusion couched as a factual allegation." Id. at 1949-50 (quoting Twombly, 550 U.S. at 555). Second, assuming the veracity of well-pleaded factual allegations, the Court must "determine whether they plausibly give rise to an entitlement to relief." Id. at 1950. This determination is context-specific, requiring the Court to draw on its ...