United States District Court, D. Arizona
Stephen S. Edwards, Plaintiff,
PHH Mortgage Corporation, et al., Defendants.
the Court is Defendant PHH Mortgage Corporation's (the
“Defendant”) Motion to Dismiss Amended Complaint
(the “Motion”). (Doc. 34) The Defendant moves to
dismiss the Plaintiff's first amended complaint (the
“FAC”) pursuant to Federal Rule of Civil
Procedure 12(b)(6) because the Plaintiff fails to
sufficiently allege any causes of action against the
Defendant. For the reasons that follow, the Motion is
Plaintiff initiated this action on October 3, 2017. (Doc. 1)
Plaintiff alleges that the Defendant engaged in fraudulent
conduct in the administration of a loan related to a property
located in Mesa, Arizona. (Doc. 31)
6, 2018, the United States District Court for the District of
New Jersey issued an order (the “Dismissal
Order”) dismissing the Plaintiff's first complaint.
(Doc. 29) In the opinion accompanying the Dismissal Order,
the New Jersey court found that the Plaintiff's
“factual allegations [were] vague and unclear.”
(Doc. 28 at 2)
Plaintiff filed the FAC on June 22, 2018. (Docs. 31) The
Defendant moves to dismiss the FAC on the basis that it does
not cure any of the defects discussed in the Dismissal Order.
(Doc. 34-1 at 8)
survive a motion to dismiss, a complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief” such that the
defendant is given “fair notice of what the . . . claim
is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting
Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41,
47 (1957)). The Court may dismiss a complaint for failure to
state a claim under Federal 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. Pacificia Police Dep't, 901 F.2d 696, 699 (9th
deciding a motion to dismiss, the Court must “accept as
true all well-pleaded allegations of material fact, and
construe them in the light most favorable to the non-moving
party.” Daniels-Hall v. Nat'l Educ.
Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). In
comparison, “allegations that are merely conclusory,
unwarranted deductions of fact, or unreasonable
inferences” are not entitled to the assumption of
truth, and “are insufficient to defeat a motion to
dismiss for failure to state a claim.” Id.;
In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th
Cir. 2010). A plaintiff need not prove the case on the
pleadings to survive a motion to dismiss. OSU Student
All. v. Ray, 699 F.3d 1053, 1078 (9th Cir. 2012).
Court finds that the FAC fails to address any of the defects
identified in the Dismissal Order. The Dismissal Order stated
that the Plaintiff “provided minimal detail as to the
contract at issue” in his breach of contract claim, and
that the Plaintiff “has not specified which provisions
of that contract Defendant allegedly breached or in what way
it did so.” (Doc. 28 at 7) The Court finds that the FAC
does not remedy this defect, as the FAC only adds vague
statements about the Plaintiff's intent behind this
lawsuit, along with salacious comments about the Defendant
and its counsel. (Doc. 31 at 2)
Plaintiff's breach of fiduciary duty claim, the Dismissal
Order states that “Plaintiff has not pleaded facts
suggesting that there is a fiduciary relationship between
himself and Defendant.” (Doc. 28 at 8) The FAC does not
add any facts that allow the Court to find that a fiduciary
relationship exists between the Plaintiff and the Defendant.
On the Plaintiffs fraud claim, the Dismissal Order states
“Plaintiff has not alleged his fraud claim with any
precision, and his allegations fall well short of the
specificity required by Fed.R.Civ.P. 9(b). Plaintiffs fraud
allegations consist solely of the conclusory statements that
he was knowingly misled by Defendant and overcharged.”
(Doc. 28 at 8-9) The FAC does not remedy this defect, as the
Plaintiff continues to solely rely on conclusory statements
to establish this cause of action. As the Dismissal Order
noted, the Plaintiffs claims for specific performance and
injunctive relief are dismissed because they are remedies,
not claims. (Doc. 28 at 6) In that same vein, the Court
declines to address those issues here. Finally, on the
Plaintiffs claims under the Truth in Lending Act and the Fair
Credit Reporting Act, the Dismissal Order states that the
Plaintiffs claims “consist[ed] wholly of legal
conclusions” “without any facts to support these
conclusions”. (Doc. 28 at 9) The FAC does not remedy
this defect, as the Plaintiff continues to solely rely on
conclusory statements to establish this cause of action.
Because the FAC does not remedy any of the defects identified
in the Dismissal Order, the Court finds that the FAC must be
dismissed as well.
IT IS ORDERED that Defendant PHH Mortgage
Corporation's Motion to Dismiss Amended Complaint (Doc.
34) is granted;
IS FURTHER ORDERED that all pending motions (Docs.
33, 38, 39, 43, 51, 52, 54, 82, 83) are denied as
moot, and the Clerk of Court shall ...