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Steven G. Dunmore v. Jeremy A. Dunmore

July 10, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Presently before the court is Defendant Sidney B. Dunmore's motion to dismiss and/or to strike, filed May 14, 2012, joined by defendants Anthony Garcia, Canyon Falls Group ("Canyon Falls"), LLC, and Lynda Tremain, as well plaintiff's counter-motion to strike,*fn1 filed May 29, 2012, with his opposition to defendants' motion.*fn2


This action was removed from state court on October 28, 2011. The second amended complaint ("SAC") alleges that defendants violated the Dunmore Family Trust ("Trust") established by Ruth and George Dunmore, of which plaintiff is the assignee of all claims belonging to that trust. The appellate court decision attached to the SAC sheds some light on the matter.*fn3 Although the case is not limited to a family dispute, it appears that the major players are heirs of George and Ruth Dunmore. Plaintiff Steven Dunmore is one of their sons and the assignee of potential claims which Ruth, as trustee of her family's Trust, held against her grandsons, defendants Sidney D. Dunmore and Jeremy Dunmore and their company, GSJ Company, LLC ("GSJ"). Moving defendant Sidney B. Dunmore is the father of Sidney D.*fn4 and Jeremy, and the brother of plaintiff Steven. These claims, referenced in the appellate opinion, are that grandsons Sidney D. and Jeremy obtained guarantees from their grandparents, Ruth and George, on various bank loans, and that some of the guarantees contained forged signatures while other guarantees were obtained based on undue influence by the grandsons. (SAC, Ex. 3.)

The instant complaint alleges fraudulent activity not only by these relatives but also by various other individuals and entities. The SAC alleges in this regard that defendants Sidney D., Jeremy, and GSJ "procured fraudulent loans in order to live a lavish lifestyle, acquire raw land and develop real estate projects at the expense or risk to third parties, and thereby defraud their own grandparents, multiple financial institutions (banks) and other private lenders and investors, including, but not limited to, many other senior or elder citizens as further described and alleged hereinbelow." [Sic] (SAC ¶ 41.) The SAC further alleges that Sidney D. and Jeremy obtained "funding and multiple loans by unlawful means including grand theft, identity theft, forgery and bank fraud...." (Id. at ¶ 45.) The first and second claims are for violations of 18 U.S.C. § 1962, the Racketeer Influenced and Corrupt Organizations Act ("RICO"). The SAC also includes state law claims of fraud, financial elder abuse, breach of contract and guaranty, unjust enrichment, indemnity, fraudulent transfer, civil conspiracy or aiding and abetting commission of torts, successor entity liability and quia timet.


Defendants Sidney B., joined by defendants Anthony Garcia, Canyon Falls, and Lynda Tremain, move to strike the SAC because it was filed two days late and exceeds the fifty page limit by one page, and to strike it under Fed. R. Civ. P. 12(f) because it avers redundant, immaterial, impertinent, and scandalous matters. They also seek to dismiss the SAC for lack of subject matter jurisdiction because plaintiff has failed to allege an injury in fact, for failure to state a claim, and for failure to join a party under Rule 19.


A. Rule 12(b)(1) - Subject Matter Jurisdiction

On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).

First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has either diversity jurisdiction or federal question jurisdiction. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiff and defendants must be residents of different states. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962).

Second, if the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quotations and citation omitted). The court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).*fn5

B. Rule 12(b)(6) - Failure to State a Claim

In order to survive dismissal for failure to state a claim pursuant to 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept ...

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