United States District Court, D. Arizona
Dominic W. Lanza United Slates District Judge.
before the Court is Defendant Transamerica Life Insurance
Company's (“Transamerica”) motion to dismiss
Plaintiff James Erickson Family Partnership LLLP's
(“Erickson”) first amended complaint. (Doc. 15.)
For the following reasons, the Court grants in part and
denies in part Transamerica's motion.
September 4, 2018, Erickson commenced this action by filing a
complaint in Maricopa County Superior Court. Erickson never
served this version of the complaint.
November 15, 2018, Erickson filed an amended complaint in
Maricopa County Superior Court and soon thereafter served
Transamerica with the amended complaint.
December 10, 2018, Transamerica filed a notice of removal in
this Court. (Doc. 7.)
nutshell, the amended complaint (Doc. 7-6) alleges that
Erickson purchased a $1 million life insurance policy from
Transamerica in July 2006 to insure the life of James
Erickson. (Id. ¶ 18.) The complaint further
alleges that Transamerica provided various materials,
including a “prospectus, ” “annual
illustrations, ” “pricing models, ”
“accumulated balance projections, ” and
“annualized premium outlay projections, ” during
the marketing process in an attempt to induce Erickson to
purchase the policy. (Id. ¶¶ 19, 20, 43.)
These materials, the complaint alleges, suggested there
wouldn't be any “exorbitant rate increases”
or “drastic premium increases” in the future.
(Id. ¶¶ 33, 35.) The complaint further
alleges that Transamerica “had no actuarial data”
and “no reasonably reliable underwriting
criteria” on which to base these representations.
(Id. ¶¶ 22, 40.) The complaint alleges
that, although the annual premium remained relatively
constant between 2006 and 2011, hovering between $61, 392 and
$65, 976, “in August of 2017 the annualized premium
increased to $208, 956.” (Id. ¶¶
27-30.) The complaint also alleges that “Erickson made
all the premiums payments as of the date of the filing of
this complaint.” (Id. ¶ 53.) Based on
these allegations, Erickson asserts the following state-law
claims: (1) violation of the Arizona Consumer Fraud Act
(“ACFA”), (2) negligent misrepresentation, and
(3) breach of contract.
survive a motion to dismiss, a party must allege
‘sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.'”
In re Fitness Holdings Int'l, Inc., 714 F.3d
1141, 1144 (9th Cir. 2013) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “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.”
Id. (quoting Iqbal, 556 U.S. at 678).
“[A]ll well-pleaded allegations of material fact in the
complaint are accepted as true and are construed in the light
most favorable to the non-moving party.” Id.
at 1144-45 (citation omitted). However, the court need not
accept legal conclusions couched as factual allegations.
Iqbal, 556 U.S. at 679-80. Moreover,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. at 679. The court also may
dismiss due to “a lack of a cognizable legal
theory.” Mollett v. Netflix, Inc., 795 F.3d
1062, 1065 (9th Cir. 2015) (citation omitted).
asserts, and Erickson does not seem to dispute,
that claims under the ACFA and for negligent
misrepresentation are subject to the heightened pleading
requirements of Federal Rule of Civil Procedure 9(b).
See, e.g., In re Banner Health Data Breach
Litig., 2017 WL 6763548, *6 (D. Ariz. 2017)
(“Claims arising under the ACFA pertain to fraud and
are thus subject to the pleading requirements of Rule 9(b) of
the Federal Rules of Civil Procedure.”); Estrada v.
Capella Univ., Inc., 2018 WL 1428155, *2 (D. Ariz. 2018)
(“Claims for negligent misrepresentation must meet the
particularity requirements of Rule 9(b).”) (citation
and internal quotation marks omitted). See also Sweeney
v. Darricarrere, 2009 WL 2132696, *12 n.109 (D. Ariz.
2009) (“Although the Ninth Circuit has suggested that
negligent misrepresentation may be a non-fraudulent averment,
[m]ost district courts within the Ninth Circuit have held
that a [negligent misrepresentation claim is subject to the]
heightened pleading requirements of Rule 9(b).”)
(citations and internal quotation marks omitted).
9(b) requires a plaintiff to “state with particularity
the circumstances constituting fraud or mistake.”
Fed.R.Civ.P. 9(b). “To satisfy Rule 9(b), a pleading
must identify ‘the who, what, when, where, and how of
the misconduct charged,' as well as ‘what is false
or misleading about [the purportedly fraudulent] statement,
and why it is false.'” United States ex rel.
Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047,
1055 (9th Cir. 2011) (citation omitted); see also
Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (noting
that under Rule 9(b), the plaintiff “must state the
time, place, and specific content of the false
representations as well as the identities of the parties to
the misrepresentation”). “[T]he circumstances
constituting the alleged fraud [must] be specific enough to
give defendants notice of the particular misconduct . . . so
that they can defend against the charge and not just deny
that they have done anything wrong.” Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.
2003) (citations and internal quotation marks omitted).
Importantly, however, “[a] plaintiff in a
fraud-by-omission suit faces a slightly more relaxed burden,
due to the fraud-by-omission plaintiff's inherent
inability to specify the time, place, and specific content of
an omission in quite as precise a manner.” In re
Banner Health Data Breach Litig., 2017 WL 6763548 at *7
Evidence Outside the Pleadings
if a district court considers evidence outside the pleadings
in ruling on a motion to dismiss, it must convert the motion
into a motion for summary judgment and give the nonmovant an
opportunity to respond. United States v. Ritchie,
342 F.3d 903, 907 (9th Cir. 2003). A district court may,
however, consider “[c]ertain written instruments
attached to pleadings” in ruling on a motion to
dismiss. Id. at 908. Additionally, “[e]ven if
a document is not attached to a complaint, it may be
incorporated by reference into a complaint if the plaintiff
refers extensively to the document or the document forms the
basis of the plaintiff's claim.” Id. The
plaintiff need “not explicitly allege the contents of
that document in the complaint” for the court to
consider it, as long as the “plaintiff's claim
depends on the contents of [the] document, the defendant
attaches the document to its motion to dismiss, and the
parties do not dispute the authenticity of the
document.” Kn ...