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Boynton v. American Modern Insurance Co.

United States District Court, N.D. California

February 22, 2018

PEGGY G. BOYNTON, Plaintiff,




         Plaintiff 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. See Docket.

         The 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).

         The 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 AMEND.


         Rule 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).

         A court 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 parentheticals omitted).

         In 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 omitted).

         If a 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 (1962)).


         The 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.

         Plaintiff 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, 000. Id.

         The 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 ...

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