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Upham v. Fox

United States District Court, N.D. California

July 2, 2014

HELENA FOX, et al., Defendants.


MAXINE M. CHESNEY, District Judge.

Before the Court is defendants' motion, filed May 21, 2014, to dismiss plaintiff's Third Amended Complaint ("TAC"). Plaintiff has filed opposition, [1] to which defendants have replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.[2]


The instant action was filed July 19, 2013, and arises out of plaintiff's $300, 000 investment in 1991, at the instigation of Peter M. Fox ("decedent"), in three Costa Rica corporations. (See TAC at 12:3-10.)[3] Prior to the instant action, plaintiff brought four other lawsuits against the decedent and/or his heirs: two in California state court, in 1995 and 1999, respectively; one in Costa Rica, in or about 2000;[4] and one in federal court, in 2008. (See Defendants' Request for Judicial Notice ("RJN") at Exs. 1, 3, 6; TAC ¶¶ 12-13)[5] The 1995 action was dismissed by the state court in 1998, following a hearing on an Order to Show Cause. (See RJN at Ex. 2.) The 1999 action, which involved the same claims as the 1995 action, was voluntarily dismissed in 2007 by plaintiff. (See id. at Ex. 5.) The 2008 action, which realleged those same claims and added claims for "Injunction" and "Constructive Trust" as well as allegations pertaining to the decedent's probate, was voluntarily dismissed by plaintiff in 2010. (See Upham v. Personal Representative of the Estate of Peter M. Fox, et al., 08-cv-1859 MMC, Dkt. No. 35.) The Costa Rican action proceeded to judgment. (See TAC ¶¶ 12-13.)

In the instant action, plaintiff, in his Second Amended Complaint ("SAC"), alleged the following four causes of action: "Accounting, " "Unjust Enrichment, " "Injunction, " and "Constructive Trust, " all of which had been alleged in essentially identical form in the 2008 action, and all of which the Court, by order filed April 8, 2014, dismissed for a number of reasons, and, in particular, that said causes of action either were barred by the applicable statutes of limitations or pleaded only remedies. The Court afforded plaintiff leave to amend to cure the noted deficiencies, by, inter alia, alleging facts sufficient to show the timeliness of any cause of action alleged.

In his TAC, plaintiff realleges the above-referenced four causes of action, adds six new causes of action, specifically, "Breach of Contract, " "Conversion, " "Breach of Fiduciary Duty, " "Intentional Misrepresentation, " "Negligent Misrepresentation, " and "Concealment of Material Facts, " along with expanded "General Allegations" (see TAC at 11:11) and "Specific Allegations" (see id. at 24:8), and attaches a tolling agreement previously referenced in, but not provided with, the SAC.


Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2), however, "requires only a short and plain statement of the claim showing that the pleader is entitled to relief.'" See Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). Consequently, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations." See id. Nonetheless, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." See id. (internal quotation, citation, and alteration omitted).

In analyzing a motion to dismiss, a district court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Industries, Inc. v. Kaplan , 792 F.2d 896, 898 (9th Cir. 1986). "To survive a motion to dismiss, a complaint must contain sufficient factual material, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 570). "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly , 550 U.S. at 555. Courts "are not bound to accept as true a legal conclusion couched as a factual allegation." See Iqbal , 556 U.S. at 678 (internal quotation and citation omitted).


Defendants argue plaintiff has failed to cure any of the defects identified by the Court in its prior order. As set forth below, the Court agrees.

A. Causes of Action Previously Dismissed

Plaintiff's "Accounting, " "Unjust Enrichment, " "Injunction, " and "Constructive Trust" causes of action are repeated verbatim from the SAC and differ only to the extent that the allegations incorporated by reference therein have changed.[6] In his opposition, which, as noted, was filed twelve days late, plaintiff fails to argue how the TAC cures any of the deficiencies previously identified by the Court, and, as discussed below, the Court finds those changes, whether considered individually or in combination, do not assist plaintiff in pleading a viable claim.

First, the "Factual Allegations" section of the TAC is identical to the "Factual Allegations" section included in the SAC. (Compare TAC ¶¶ 22-46 with SAC ¶¶ 22-46.) Next, the one change to the "General Allegations" section is that it now states that the previously referenced tolling agreement is attached to the complaint (compare TAC ¶¶ 47-91 with SAC ¶¶ 47-91), and the "Specific Allegations" section of the TAC differs from that included in the SAC only in that it states defendants' earlier-alleged refusals to provide plaintiff with an accounting (see SAC ¶ 77) and to allow him to enter and use the property (see id. ¶ 47, 89) are continuing (see TAC at 24:18-23), and states the Costa Rica courts lack authority ...

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