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Barbano v. Washington Mutual/Chase

United States District Court, D. Arizona

November 16, 2015

Linda Barbano, Plaintiff,
v.
Washington Mutual/Chase, Defendant.

ORDER

John Z. Boyle, United States Magistrate Judge

Pending before the Court is Plaintiff’s First Amended Complaint. (Doc. 8.) Plaintiff filed her initial Complaint and an Application to proceed in forma pauperis on February 18, 2015. (Doc. 2.) On April 30, 2015, the Court granted the Application, screened her Complaint, and dismissed it with leave to amend. (Doc. 7.) On May 29, 2015, Plaintiff filed her First Amended Complaint. As detailed below, the Court will dismiss Plaintiff’s First Amended Complaint because her claims are time-barred, and her First Amended Complaint fails to comply with Rules 8 and 9 of the Federal Rules of Civil Procedure. The Court will allow Plaintiff leave to file a second amended complaint.

I. Legal Standards

a. 28 U.S.C. § 1915(e)(2)

For cases proceeding in forma pauperis, Congress provided that a district court “shall dismiss the case at any time if the court determines” that the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (noting that section 1915(e) applies to all in forma pauperis complaints, not merely those filed by prisoners). Accordingly, “section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.” Lopez, 203 F.3d at 1127.

b. Rule 8

Rule 8(a) of the Federal Rules of Civil Procedure provides that to state a claim for relief, a complaint must contain (1) “a short and plain statement of the grounds for the court’s jurisdiction, ” (2) “a short and plain statement of the claim showing that the pleader is entitled to relief, ” and (3) “a demand for the relief sought.” The complaint also must contain “sufficient factual matter, 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The complaint must also provide each defendant with a fair opportunity to frame a responsive pleading. McHenry v. Renne, 84 F.3d 1172, 1176 (9th Cir. 1996). Even where a complaint has the factual elements of a cause of action present but scattered throughout and not organized into a “short and plain statement of the claim, ” the Court may dismiss the complaint for failure to satisfy Rule 8. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988). Dismissal of the complaint is appropriate if it is so “verbose, confused and redundant that its true substance, if any, is well disguised.” Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969).

c. Rule 9(b)

Rule 9(b) requires that a plaintiff alleging fraud or mistake “state with particularity circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). Rule 9(b) has been interpreted by the Ninth Circuit Court to require the plaintiff to “state the time, place, and specific content of the false representations as well as the identities of parties to the misrepresentation.” Schreiber Distrib. Co. v. Serv-Well Furn. Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see also Vess v. Ciba-Geigy Corp. USA, 31 F.3d 1097, 1103 (9th Cir. 2003) (“Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged.”). The plaintiff must also “set forth an explanation as to why the disputed statement was untrue or misleading when made.” Yourish v. Cal. Amplifier, 191 F.3d 983, 993 (9th Cir. 1999).

II. Analysis of Plaintiff’s First Amended Complaint

Although not entirely clear, Plaintiff’s First Amended Complaint appears to assert claims against Defendants for certain criminal violations, violation of the Real Estate Settlement Procedures Act (RESPA), wrongful foreclosure, false misrepresentation, extrinsic fraud, breach of fiduciary duty, breach of contract, and breach of the implied covenant of good faith and fair dealing, all related to the foreclosure of her home in 2004.[1] (Doc. 8.) Plaintiff alleges that in a 2004 state court action, CV2004-08567, she requested injunctive relief to stop the trustee sale of her home, which the state court denied. (Doc. 8 at 8, 11-12.) She asserts that she filed an appeal with the Arizona Court of Appeals, which the Court of Appeals dismissed “due to Plaintiff not receiving mail or reached by phone.” (Id. at 3.) Plaintiff further asserts that she was “struggling and unaware of [the] court schedule” and Defendants made a “[m]isrepresentation to the Court.” (Id.) Finally, Plaintiff claims that Defendants “engaged in fraudulent foreclosure to take the property belonging to the plaintiff, ” “[D]efendants had taken advantage of the plaintiff[’]s lack of knowledge in property laws[, ] the plaintiff’s ability to hire counsel, and the loss of plaintiff’s mother on the 18th day of April 2004, ” and the signature on the deed was forged. (Id. at 7-8.) As detailed below, the Court will dismiss Plaintiff’s First Amended Complaint because her claims are time-barred and her First Amended Complaint fails to state a claim for relief.

a. Plaintiff’s claims are time-barred.

As an initial matter, the conduct about which Plaintiff complains in her First Amended Complaint occurred at least 10 years ago. Further, Plaintiff fails to assert allegations that show she could prove the applicable statutes of limitations were tolled. See Jablon v. Daen Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). Accordingly, the Court will dismiss Plaintiff’s claims as time-barred. See Diessner v. Mortgage Elec. Registration Sys., 618 F.Supp.2d 1184, 1189 (D. Ariz. 2009) (“RESPA provides a three-year statute of limitations for violations of section 2605 and a one-year statute of limitations for violations of section 2607 or 2608.”); Mister Donut of Am., Inc. v. Harris, 723 P.2d 670, 672 (Ariz. 1986) (citing A.R.S. § 12-543) (applying a three-year statute of limitations to fraud claims); Hullett v. Cousin, 63 P.3d 1029, 1034 (Ariz. 2003) (citing A.R.S. § 12-542) (applying a two-year statute of limitations to claims for negligent misrepresentation); Crook v. Anderson, 565 P.2d 908, 909 (Ariz.Ct.App. 1977) (applying a two-year statute of limitations to claims for breach of fiduciary duty); A.R.S. § 12-548 (“An action for debt shall be commenced and prosecuted within six years after the cause of action ...


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