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Gorman v. JP Morgan Chase Bank

United States District Court, Ninth Circuit

May 3, 2013

JP MORGAN CHASE BANK, et al., Defendants.


MICHAEL M. ANELLO, District Judge.

On February 25, 2013, Plaintiff Joe Gorman, proceeding pro se, filed a First Amended Complaint ("FAC") against Defendants JP Morgan Chase Bank, N.A., Chase Auto Finance, Jay Cocchiara, Rosemary Verjan, James Smith, Tricia LaFrantz, Sonia Peralta, Del Mar Recovery Solutions, Inc., and Joshua Elias (respectively "JP Morgan, " "Chase, " "Cocchiara, " "Verjan, " "Smith, " "LaFrantz, " "Peralta, " "Del Mar, " and "Elias, " and collectively "Defendants"). The FAC alleges several causes of action arising out of a vehicle loan agreement between Plaintiff and JP Morgan. On March 19, 2013 and April 1, 2013, Defendants filed three motions to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. Nos. 8, 9, 17.] Alternatively, Defendants seek to strike certain portions of the FAC under Rules 12(f) and (g). For the reasons set forth below, the Court GRANTS Defendants' motion to dismiss and DENIES as moot Defendants' motions to strike.


In 2007, Plaintiff purchased a vehicle from a car dealership in Lemoore, California. Defendant JP Morgan financed the purchase. Sometime thereafter, Plaintiff began having difficulty making the loan payments, so he requested a cap on the loan's interest rate and a reduction of his loan payment. JP Morgan refused. Nonetheless, according to Plaintiff, JP Morgan allegedly began accepting half payments, and even payments as low as $5.00, without complaint.

In December 2012, Plaintiff entered into settlement negotiations with Defendant Smith, a JP Morgan Chase Auto Finance Representative, to settle his loan account. On December 30, the parties allegedly agreed to settle Plaintiff's account for $5, 000. Smith told Plaintiff to obtain a $5, 000 cashier's check, deliver it to a JP Morgan Chase Bank, and have the bank "FedEx" the check overnight. Plaintiff attempted to follow these instructions, but Defendant Vergan, the Assistant Bank Manager, refused to FedEx the check, citing company policy and the fact that it was late in the work day. However, after a lengthy discussion, Vergan agreed to send a "Fax Confirmation" to Smith regarding the arrangement with Plaintiff, and told Plaintiff that Smith would contact him via telephone in several days. Plaintiff, however, never received a call from Smith. Subsequently, Plaintiff alleges that Defendants have been verbally abusing him through "Robo-type Hang up calls, " threats of repossession, and threats of garnishing Plaintiff's only means of support. Accordingly, the present suit ensued.

Defendant Del Mar is a repossession agency licensed by the Department of Consumer Affairs for the State of California. Defendant Elias is the President of Del Mar. The remaining individual defendants are JP Morgan employees.


Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted, " generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require detailed factual allegations, ' it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed.R.Civ.P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557).

Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 679 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Id.

Where a plaintiff proceeds pro se, the Court must liberally construe the complaint. Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) ("Court have a duty to construe pro se pleadings liberally including pro se motions as well as complaint."). In fact, the Supreme Court has held that "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks and citations omitted).

Where a motion to dismiss is granted, "leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.


Del Mar and Elias filed a request for judicial notice concurrently with their motion to dismiss. [Doc. No. 8-2.] Under Federal Rule of Evidence 201(b), judicial notice may be taken of facts that are "not subject to reasonable dispute" because they are "capable of accurate and ready determination by resort ...

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