United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants' motion to
dismiss Plaintiff's First Amended Complaint (Dkt. No.
25). Having thoroughly considered the parties' briefing
and the relevant record, the Court finds oral argument
unnecessary, hereby DENIES the motion (Dkt. No. 25) for the
reasons explained herein, and DIRECTS Plaintiff to file its
proposed Second Amended Complaint (Dkt. No. 27 at 24-31)
within ten (10) days of this order.
Court described the underlying facts of this case in a
previous order (Dkt. No. 20) and will not repeat them here.
The Court previously dismissed Plaintiff's claims with
prejudice, except for claims Plaintiff brought under the
Washington Consumer Protection Act (“WCPA”),
Wash. Rev. Code § 19.86. et seq., which the
Court dismissed without prejudice and with leave to amend.
(Dkt. No. 20.) Plaintiff has since filed a First Amended
Complaint (Dkt. No. 23).
again move to dismiss (Dkt. No. 25). Plaintiff, in opposing
Defendants' motion, includes a proposed Second Amended
Complaint. (Dkt. No. 27 at 24-31.)
move to dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). (Dkt. No. 25.) Defendants assert the
Court lacks subject matter jurisdiction over this case
pursuant to 28 U.S.C. § 1332 because Plaintiff, a
limited liability company (“LLC”), does not
properly plead the citizenship of its member and is unable to
satisfy the amount in controversy. (Id. at 8)
Defendants further assert an LLC cannot bring a WCPA claim
and even if it could, Plaintiff fails to allege sufficient
facts to show the required elements of injury or causation.
(Id. at 11.)
motion to dismiss brought under Federal Rule of Civil
Procedure 12(b)(1) asserting lack of subject matter
jurisdiction may be a facial or factual challenge. See
White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a
facial attack, the defendant asserts that the plaintiff's
allegations are insufficient on their face to confer federal
jurisdiction. In reviewing such an attack, the Court assumes
all material allegations in the complaint are true.
Thornhill Publ'g Co. v. General Tel. Elec., 594
F.2d 730, 733 (9th Cir. 1979). Here, Defendants facially
attack Plaintiff's First Amended Complaint, asserting
that it does not identify the citizenship of Plaintiff's
members. (Dkt. No. 25 at 9-10.) Defendants are correct. A
complaint containing claims by an LLC must identify the
citizenship of its members in order to establish the
Court's jurisdiction. W.D. Wash Local Civ. R. 8. In
response, Plaintiff submits a proposed Second Amended
Complaint that cures this facial deficiency. (See
Dkt. No. 27 at 24 ¶ 1) (declaration from Bradley Ellis
that he is a citizen of Washington and is the sole member of
Plaintiff Smokiam RV Resort, LLC). Pursuant to Federal Rule
of Civil Procedure 15(a)(2), the Court GRANTS Plaintiff leave
to amend its First Amended Complaint, as proposed. Plaintiff
is DIRECTED to docket the Second Amended Complaint, as
proposed, within ten (10) days of this order. This amendment
resolves Defendants' first challenge.
also brings a factual challenge, asserting Plaintiff fails to
plausibly allege that the amount in controversy exceeds $75,
000. (Dkt. No. 25 at 10.) Normally, once the moving party
factually attacks a district court's subject matter
jurisdiction, the non-moving party must put forward
“evidence necessary to satisfy its burden of
establishing subject matter jurisdiction.” Safe Air
for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). But for purposes of the amount in controversy,
“[t]he sum claimed by the plaintiff controls so long as
the claim is made in good faith.” Crum v. Circus
Circus Enters., 231 F.3d 1129, 1131 (9th Cir. 2000).
“To justify dismissal, it must appear to a legal
certainty that the claim is really for less than the
jurisdictional amount.” Id. (internal
quotation marks and citation omitted). Defendants argue that
the only damages Plaintiff plausibly asserts is $15, 000 in
additional interest accrued as a result of Defendants'
alleged errors in processing Plaintiff's payments,
related attorney fees, and punitive damages. (Dkt. No. 30 at
8.) In making its argument, Defendants dismiss
Plaintiff's allegations of “substantial additional
costs to obtain permanent financing” resulting from
Defendants' actions, which Plaintiff asserts exceeds
$660, 000. (Dkt. No. 23 at 6). Plaintiff supports its
allegations with declarations from Plaintiff's sole
member and Plaintiff's banker. (See Dkt. Nos.
28, 29.) The Court may consider materials beyond the
complaint in reviewing a factual attack on subject matter
jurisdiction. McCarthy v. U.S., 850 F.2d 558, 560
(9th Cir. 1988). Given Plaintiff's assertions and related
evidence, the Court concludes that it is far from a legal
certainty that the amount of Plaintiff's claim is less
than $75, 000. Plaintiff sufficiently alleges an amount in
controversy in excess of the jurisdictional minimum.
basis, Defendants' 12(b)(1) motion to dismiss is DENIED.
must dismiss an action if a plaintiff “fails to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). Under Rule 12(b)(6), the Court accepts all factual
allegations in the complaint as true and construes them in
the light most favorable to the nonmoving party. Vasquez
v. L.A. County, 487 F.3d 1246, 1249 (9th Cir. 2007).
However, to survive a motion to dismiss, a plaintiff must
cite facts supporting a “plausible” cause of
action, consistent with Federal Rule of Civil Procedure
8(a)(2). Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-56 (2007). A claim has “facial
plausibility” when the party seeking relief
“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, 672 (2009) (quotations omitted). Although the Court
must accept as true a complaint's well-pleaded facts,
“conclusory allegations of law and unwarranted
inferences will not defeat an otherwise proper motion to
dismiss.” Vasquez, 487 F.3d at 1249 (quotation
alleges Defendants violated WCPA based on the manner in which
they serviced Plaintiff's loan. (Dkt. No. 23 at 6-8.) A
properly plead WCPA claim requires facts demonstrating the
following elements: (1) an unfair or deceptive act or
practice, (2) occurring in trade or commerce, (3) that
impacts the public interest, (4) that causes injury to the
Plaintiffs' business or property, and (5) causation.
Hangman Ridge Training Stables v. Safeco Title Ins.
Co., 719 P.2d 531, 533 (Wash. 1986). Defendants assert
Plaintiff, as an LLC, lacks standing to bring a WCPA claim.
(Dkt. No. 25 at 12-15.) Moreover, ...