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Eileen Frances Living Trust v. Bank of America

United States District Court, E.D. Washington

May 2, 2017

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,


          ROSANNA MALOUF PETERSON United States District Judge.

         BEFORE 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.


         Plaintiffs 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.

         The 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.


         Local 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.

         The 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 case.

         Furthermore, 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.

         The two 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.

         The 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)).

         To 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)).

         A 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 ...

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