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Belluomini v. Citigroup Inc.

United States District Court, Ninth Circuit

October 15, 2013

DINO BELLUOMINI ET AL., Plaintiffs,
v.
CITIGROUP INC. ET AL., Defendants.

ORDER GRANTING MOTION TO DISMISS

CHARLES R. BREYER, District Judge.

In this suit, Plaintiffs Dino Belluomini and Susan Flaherty, owners of Stella Pastry Cafe and Victoria Pastry Co., Inc., (collectively "Plaintiffs"), seek to hold Defendants Wells Fargo Bank, N.A., Citigroup, Inc. and Citibank, N.A., (collectively "Defendants") responsible for the financial misdeeds of Giuseppe Viola. Because Plaintiffs fail to state a claim despite having been given leave to amend, the Court grants Defendants' motions to dismiss with prejudice.

I. BACKGROUND[1]

This case involves an alleged ponzi scheme run by Viola. Plaintiffs allege that Viola issued cashier's checks containing Plaintiffs' names to his "investors, " and that he did so by accessing Plaintiffs' accounts without their knowledge or consent. See FAC (dkt. 37) ΒΆΒΆ 16-32. In April 2013, Plaintiffs brought suit against Defendants, alleging breach of contract, negligence, negligent infliction of emotional distress, invasion of privacy in violation of the California Constitution, and common law invasion of privacy. See generally Not. of Removal (dkt. 1) Ex. 1. On July 23, 2013, the Court granted Defendants' first motions to dismiss, permitting Plaintiffs to amend only the breach of contract and invasion of privacy claims. See generally Order at 13. Plaintiffs filed the FAC on August 14, 2013, asserting only those claims. See generally FAC. Defendants again move to dismiss. See generally WF Mot. (dkt. 38); Citi Mot. (dkt. 41).

II. LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted "tests the legal sufficiency of a claim." Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). While "detailed factual allegations" are not required, a complaint must include sufficient facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "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.

For purposes of ruling on a Rule 12(b)(6) motion to dismiss, the district court accepts all allegations of material fact as true and construes the pleadings in the light most favorable to the plaintiffs. Manzarek v. St. Paul Fire & Marine Ins. Co. , 519 F.3d 1025, 1031 (9th Cir. 2008). The district court need not, however, accept as true pleadings that are no more than legal conclusions or the "formulaic recitation of the elements of a cause of action." Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 555). Mere "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Wash. Energy Co. , 83 F.3d 1136, 1140 (9th Cir. 1996); accord Iqbal, 129 U.S. at 687.

III. DISCUSSION

Defendants' motions raise three issues: (A) the basis for holding Citigroup liable; (B) the viability of the breach of contract claim; and (C) the viability of the invasion of privacy claims. This Order addresses each issue in turn.

A. Citigroup

Citigroup and Citibank argue first that Citigroup is not liable for the actions of its subsidiary, Citibank. See Citi Mot. at 3-4. The Court explained in its Order that "there are two exceptions to the rule that a parent corporation is not liable for the acts of its subsidiaries" - when either the alter ego doctrine or an agency relationship applies. Order at 2 n.1. The Court found that "Plaintiffs [had] not sufficiently pled that one or both of these exceptions" applied, but allowed Plaintiffs leave to amend. Id.

The FAC does not mention either exception and provides no basis for holding Citigroup liable. Nor do Plaintiffs even address this argument in their Opposition brief. Their claims against Citigroup are therefore waived. See Qureshi v. Countrywide Home Loans, Inc., No. 09-4198 , 2010 WL 841669, at *6 n.2 (N.D. Cal. Mar. 10, 2010) (deeming plaintiff's failure to address, in opposition brief, claims challenged in a motion to dismiss, an "abandonment of those claims") (citing Jenkins v. City of Riverside , 398 F.3d 1093, 1095 n.4 (9th Cir. 2005)).

The Court finds Citigroup ...


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