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Silaev v. Swiss-America Trading Corporation

United States District Court, D. Arizona

March 31, 2015

Serguei Silaev, Plaintiff,
v.
Swiss-America Trading Corporation, Defendant.

ORDER

JAMES A. TEILBORG, Senior District Judge.

Pending before the Court is Defendant's "Rule 12(b)(6) Motion to Dismiss Three Counts of [Plaintiff's] First Amended Complaint." (Doc. 15). These three counts include: (1) Defendant's violation of the Arizona Consumer Fraud Act ("ACFA"), (2) conspiracy, and (3) breach of fiduciary duty. The Court now rules on the motion.

I. Background

a. Procedural History

Plaintiff initially filed a complaint in Arizona superior court on October 15, 2014. (Doc. 1, Exh. A at 13). The case was removed by Defendant to the U.S. District Court for the District of Arizona on November 18, 2014. (Doc. 1). Plaintiff's initial complaint was deficient and Plaintiff filed an amended complaint on December 29, 2014. (Doc. 13). On January 12, 2015, Defendant filed a motion pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) to dismiss three counts in Plaintiff's amended complaint. (Doc. 15). Plaintiff failed to respond to Defendant's motion to dismiss.

b. Factual History

Defendant has bought and sold U.S. gold and silver coins for over thirty-two years. (Doc. 13 at 2, ¶ 3). Plaintiff contracted with Defendant to make such purchases and sales. (Doc. 13 at 3, ¶¶ 5-6). Plaintiff contends in his amended complaint that Defendant intentionally deceived Defendant into purchasing thousands of dollars of "allegedly rare coins." (Doc. 13 at 3, ¶ 5). Plaintiff states that Defendant used "boiler room" sales tactics as a company-wide scheme on unsuspecting customers such as the Plaintiff, and Defendant "employed misleading selling points and unscrupulous sales tactics" so that Plaintiff would "rely on such misrepresentations and purchase large amounts of coins from Defendant." (Doc. 13 at 3-4, ¶¶ 6-7). Defendant allegedly offered Plaintiff a "money back guarantee" if Plaintiff did not "realize his initial investment, " and later "disavow[ed] the guarantee." (Doc. 13 at 4, ¶ 8). Defendant also allegedly advised Plaintiff to take his money out of "more secure investment vehicles" and to use this money to purchase rare coins knowing the coins "did not possess the high values advertised by Defendant." (Doc. 13 at 5, ¶ 11).

On these allegations, Plaintiff asserts six counts numbered as follows: (1) violation of the Arizona Consumer Fraud Act, (2) breach of contract, (3) "fraud, negligent misrepresentation, fraudulent inducement and negligence, " (4) conspiracy, (5) breach of fiduciary duty, and (6) breach of warranty. (Doc. 13 at 6-11). Defendant moves to dismiss the first, fourth and fifth counts above. (Doc. 15 at 1).

II. Discussion

Defendant moves to dismiss pursuant to Rule 12(b)(6) count one for violation of the ACFA, count four for conspiracy, and count five for breach of fiduciary duty. (Doc. 15 at 1). All three counts are discussed below.

The Court may dismiss a complaint for failure to state a claim under Rule 12(b)(6) for two reasons: (1) lack of a cognizable legal theory and (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet the requirements of Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief, " so that the defendant has "fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader's obligation to provide the grounds for 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 (internal citations omitted). The factual allegations of the complaint must be sufficient to raise a right to relief above a speculative level. Id. Rule 8(a)(2) "requires a showing, ' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice' of the nature of the claim, but also grounds' on which the claim rests." Id. (citing 5 C. Wright & A. Miller, Federal Practice and Procedure §1202, pp. 94, 95(3d ed. 2004)).

Rule 8's pleading standard demands more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). A complaint that offers nothing more than naked assertions will not suffice. To survive a motion to dismiss, a complaint must contain sufficient factual matter, which, if accepted as true, states a claim to relief that is "plausible on its face." Iqbal, 556 U.S. at 678. Facial plausibility exists if the pleader pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Plausibility does not equal "probability, " but plausibility requires more than a sheer possibility that a defendant has acted unlawfully. Id. "Where a complaint pleads facts that are merely consistent' with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (citing Twombly, 550 U.S. at 557).

In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the facts alleged in the complaint in the light most favorable to the drafter of the complaint and the Court must accept all well-pleaded factual allegations as true. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept as true a ...


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