United States District Court, E.D. Washington
EILEEN FRANCES LIVING TRUST; EILEEN FRANCES, Trustee, Grantor, and Principle of the Eileen Frances Revocable Living Trust; DOUG LaPLANTE, trustee and Principle of the Eileen Frances Revocable Living Trust, Plaintiffs,
BANK OF AMERICA, and SPECIALIZED LOAN SERVICING, Defendants.
ORDER GRANTING DEFENDANT BANK OF AMERICA'S MOTION
TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT
ROSANNA MALOUF PETERSON United States District Judge.
THE COURT is a motion by Defendant Bank of America
(“BOA”) to Dismiss Plaintiffs' Second Amended
Complaint, ECF No. 44. The Court has reviewed the motion, the
record, and is fully informed.
filed their Complaint in state court on August 17, 2015, and
the matter was removed to federal court on September 2, 2015.
See ECF No. 1. Plaintiffs sought relief for five
different claims, which included allegations of: (1)
Predatory Mortgage Lending, (2) Deceptive Practice, (3)
Unjust Enrichment/Unconscionability, (4) Bad Faith, and (5)
Mortgage Services Fraud. See ECF No. 1-2.
Court previously dismissed Plaintiffs' initial Complaint
for failure to state a claim. See ECF No. 30. The
Court granted Plaintiffs leave to amend their Complaint,
see ECF No. 34, and Plaintiffs filed a First Amended
Complaint that alleged three claims. See ECF No. 35.
By granting another Motion to Dismiss, ECF No. 36, the Court
dismissed the First Amended Complaint for failing to state a
claim, but granted pro se Plaintiffs another opportunity to
amend their Complaint. See ECF No. 42. Plaintiffs
filed a Second Amended Complaint, ECF No. 43, which now only
raises two claims, as Plaintiffs have dropped their
allegations of fraud.
Rule 7.1(b) requires that a pro se litigant respond to a
dispositive motion within thirty days after the motion is
filed. “The failure to comply with the requirements of
LR 7.1(a) or (b) may be deemed consent to the entry of an
Order adverse to the party who violates these rules.”
LR 7.1(d). BOA filed their third Motion to Dismiss, a
dispositive motion, on December 19, 2016. ECF No. 44.
Defendants did not file any response until February 1, 2017,
after the thirty-day deadline. ECF No. 46.
Court previously denied BOA's Motion to Strike
Plaintiffs' Response to a prior Motion to Dismiss after
Plaintiffs filed a late Response. See ECF No. 42.
BOA referenced LR 7.1(d) in their Reply regarding a prior
Motion to Dismiss in August of 2016, see ECF No. 37;
therefore, Plaintiffs had notice that LR 7.1 dictates the
motion practice deadlines in this district. Plaintiffs allege
that they were misinformed about the deadline to respond, but
this is the third Motion to Dismiss and there is no good
cause for Plaintiffs' present failure to adhere to the
same deadlines that have been applicable throughout this
even if the Court considers Plaintiffs' untimely filing,
Plaintiffs' Response is simply a broad reference back to
their Second Amended Complaint, with a copy of the Second
Amended Complaint attached to their Response, and does not
address the substance of Defendant's arguments. ECF No.
46. Pursuant to Local Rule 7.1(d), the Court finds that
Plaintiffs' Second Amended Complaint shall be dismissed
with prejudice. As an alternative analysis, the Court has
reviewed the Second Amended Complaint again in light of
Defendant's third Motion to Dismiss.
remaining claims alleged in Plaintiffs' Second Amended
Complaint suffer from deficiencies that are nearly identical
to those addressed in the Court's prior dismissal Order.
Therefore, the following discussion of these two claims
largely mirrors the Court's last Order, ECF No. 42. For
the sake of clarity, the Court repeats this analysis.
Federal Rules of Civil Procedure allow for the dismissal of a
complaint where the plaintiff fails to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion
to dismiss brought pursuant to this rule “tests the
legal sufficiency of a claim.” Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing
the sufficiency of a complaint, a court accepts all
well-pleaded allegations as true and construes those
allegations 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) (citing Manzarek v. St.
Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031-32
(9th Cir. 2008)).
withstand dismissal, a complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “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). While specific legal
theories need not be pleaded, the pleadings must put the
opposing party on notice of the claim. Fontana v.
Haskin, 262 F.3d 871, 877 (9th Cir. 2001) (citing
Conley v. Gibson, 355 U.S. 41, 47 (1957)).
plaintiff is not required to establish a probability of
success on the merits; however, he or she must demonstrate
“more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556).
“Plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and ...