United States District Court, N.D. California
PEGGY G. BOYNTON, Plaintiff,
AMERICAN MODERN INSURANCE COMPANY, Defendant.
ORDER FOR CLERK OF COURT TO REASSIGN CASE REPORT
MARIA-ELENA JAMES, UNITED STATES MAGISTRATE JUDGE
Peggy Boynton originally filed this action in Alameda County
Superior Court on December 5, 2017; she served Defendant
American Modern Insurance Company by mail on or around
December 18, 2017. Not. of Removal ¶¶ 1-2, Dkt. No.
1; Sullivan Decl. Ex. A, Dkt. No. 1 at ECF pp. 5-7. Defendant
removed this action from Alameda County Superior Court. Not.
of Removal. Pending before the Court is Defendant's
motion to dismiss for failure to state a claim. Mot., Dkt.
No. 4; see also Dkt. No. 7 (Not. of Revised Br. and
Hrg. Sched.). Defendant served the motion and notice of
revised briefing and hearing schedule upon Plaintiff.
See Dkt. No. 4 at ECF p.6; Dkt. No. 7 at ECF p.3.
The deadline for filing an opposition to the Motion was
February 16, 2018. See Civ. L.R. 7-3(a). As of the
date of this Order, Plaintiff has not opposed the Motion.
undersigned finds this matter suitable for disposition
without oral argument and VACATES the March 15, 2018 hearing
on the Motion. Fed.R.Civ.P. 78(b); Civ. L.R. 7-1(b).
undersigned filed a second notice of consent or declination,
directing the parties to respond no later than February 21,
2018. Dkt. No. 9. As Plaintiff did not consent to magistrate
judge jurisdiction, the Court ORDERS the Clerk of Court to
REASSIGN this case to a district judge with the
RECOMMENDATION that the Complaint be DISMISSED WITH LEAVE TO
8(a) requires that a complaint contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint
must therefore provide a defendant with “fair
notice” of the claims against it and the grounds for
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal quotations and citation omitted).
may dismiss a complaint under Rule 12(b)(6) when it does not
contain enough facts to state a claim to relief that is
plausible on its face. Id. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 557). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, 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. Factual allegations must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (internal citations and
considering a motion to dismiss, a court must accept all of
the plaintiff's allegations as true and construe them in
the light most favorable to the plaintiff. Id. at
550; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007);
Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1249
(9th Cir. 2007). In addition, courts may consider documents
attached to the complaint. Parks Sch. of Bus., Inc. v.
Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation
Rule 12(b)(6) motion is granted, the “court should
grant leave to amend even if no request to amend the pleading
was made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts.”
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)
(en banc) (internal quotations and citations omitted).
However, the Court may deny leave to amend for a number of
reasons, including “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182
Complaint alleges a single claim for breach of contract.
See Compl. To state a breach of contract claim under
California law, Plaintiff must allege: “‘the
existence of the contract, performance by or excuse for
nonperformance by the plaintiff, breach by the defendant, and
damages.'” Langan v. United Servs. Auto.
Ass'n, 69 F.Supp.3d 965, 979 (N.D. Cal. 2014)
(quoting First Comm'l Mortg. Co. v. Reece, 89
Cal.App.4th 731, 745 (2001)). It is “‘absolutely
essential to plead the terms of the contract either [by
incorporating the exact language of the contract into the
complaint] or according to legal effect.'”
Id. (quoting Twaite v. Allstate Ins. Co.,
216 Cal.App.3d 239, 252 (1989)). “A plaintiff fails to
sufficiently plead the terms of the contract if he does not
allege in the complaint the terms of the contract or attach a
copy of the contract to the complaint.” Id.
filed a form Contract Complaint. See Compl. at ECF
pp.10, 13. The Complaint alleges Defendant entered into the
contract “here” and that the real property that
is the subject of this action is located “here”.
Id. at ECF p.13. These statements apply to
Plaintiff's cause of action for “insurance
coverage”, and Plaintiff prays for damages of $150,
Complaint does not state a claim for breach of contract.
First and foremost, Plaintiff does not plead the essential
terms of the contract, nor does she attach a copy of the
contract to the Complaint. Second, she fails to allege her
performance or excuse for non-performance. Finally, she fails
to allege specific facts showing how ...