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Title: Attilio Armeni v. America's Wholesale Lender

May 2, 2012

TITLE: ATTILIO ARMENI
v.
AMERICA'S WHOLESALE LENDER, ET AL.



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Julie Barrera Not Present Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): GRANTING IN PART MOTION TO DISMISS AND DISMISSING FOR LACK OF SUBJECT MATTER

JURISDICTION

Before the Court is Defendants' Motion to Dismiss Plaintiffs' Third Amended Complaint (Docket 25). After considering the moving, opposing, and replying papers thereon, and for the reasons stated below, the Court hereby GRANTS IN PART the Motion to Dismiss and sua sponte DISMISSES WITH PREJUDICE the TAC for lack of subject matter jurisdiction.

I. BACKGROUND

For a full recitation of the facts of this case, refer to the Court's Order Granting in Part and Denying in Part Defendants' previous Motion to Dismiss (Docket 21) ("First MTD Order"). Plaintiff filed a Third Amended Complaint ("TAC") on February 15, 2012 (Docket 25) which asserts claims against Defendants America's Wholesale Lender ("AWL"), Deutsche Bank National Trust Company, as Trustee for the Harborview Mortgage Loan Trust 2006-5 ("Deutsche"), and Bank of America, as Successor by Merger to BAC Home Loans Servicing, LP ("BAC") (collectively, "Defendants") for declaratory relief, violation of the Fair Debt Collection Practices Act ("FDCPA"), violation of Cal. Bus. and Prof. Code Section 17200 ("UCL"), breach of contract, and breach of the implied covenant of good faith and fair dealing.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to set forth a set of facts which, if true, would entitle the complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible in order to survive a motion to dismiss). The pleadings must raise the right to relief beyond the speculative level; a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). On a motion to dismiss, this court accepts as true a plaintiff's well-pled allegations and construes all inferences in the light most favorable Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The court is not required to accept as true legal conclusions couched as factual allegations. Iqbal, 556

In evaluating a Rule 12(b)(6) motion, review is limited to the contents of the complaint and material properly submitted with the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Under the incorporation by reference doctrine, the court may also consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by 307 F.3d 1119, 1121 (9th Cir. 2002). The court may disregard allegations in the body of the complaint that are contradicted by documents attached to the complaint as

See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).

Additionally, Federal Rule of Evidence 201 allows the court to take judicial notice of certain items without converting the motion to dismiss ...


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