United States District Court, D. Oregon
DWAYNE J. DENNIS and HAZEL R.D. DENNIS, Plaintiffs,
WELLS FARGO BANK, N.A. and QUALITY LOAN SERVICE CORPORATION OF WASHINGTON, Defendants.
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE
January 22, 2019, this Court granted Defendants' motions
to dismiss, but also granted leave to Plaintiffs Dwayne and
Hazel Dennis to file a second amended complaint if they
believed they could cure the deficiencies identified in that
Order. ECF 62. Plaintiffs filed their second amended
complaint on February 14, 2019. ECF 63. Defendants now move
to dismiss the second amended complaint for failure to state
a claim. ECF 65, 66. For the reasons that follow, the second
amended complaint is dismissed with prejudice.
motion to dismiss for failure to state a claim may be granted
only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief.
Shroyer v. New Cingular Wireless Servs., Inc., 622
F.3d 1035, 1041 (9th Cir. 2010). In evaluating the
sufficiency of a complaint's factual allegations, the
court must accept as true all well-pleaded material facts
alleged in the complaint and construe them in the light most
favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012); Daniels-Hall v. Nat'l Educ. Ass'n,
629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a
presumption of truth, allegations in a complaint “may
not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). All reasonable inferences from the
factual allegations must be drawn in favor of the plaintiff.
Newcal Indus. v. Ikon Office Solution, 513 F.3d
1038, 1043 n.2 (9th Cir. 2008). The court need not, however,
credit the plaintiff's legal conclusions that are couched
as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009). A complaint must contain sufficient
factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of
discovery and continued litigation.” Starr,
652 F.3d at 1216.
representing themselves, sought in their initial complaint to
enjoin the foreclosure of their home and obtain money
damages. Their lawsuit relates to a line of credit secured by
their home that Plaintiffs obtained in 2005 from Defendant
Wells Fargo Bank, N.A. (“Wells Fargo”).
Plaintiffs' second amended complaint again asserts that
the foreclosure was wrongful, but does not add allegations of
underlying facts to explain why the foreclosure was wrongful.
The second amended complaint asserts two additional claims:
(1) fraud, based on an alleged interaction with the manager
of a Wells Fargo retail banking location and (2) unspecified
violations of the Real Estate Settlement Procedures Act
(“RESPA”). ECF 63.
prior Order, the Court advised Plaintiffs that, to state a
plausible claim for relief, they “may not simply recite
the elements of a cause of action.” ECF 62.
Plaintiffs' fraud claim fails to state a claim because it
simply recites the elements of a cause of action, and does
not plead facts to support that claim, much less with the
particularity required under Rule 9 of the Federal Rules of
Civil Procedure. To establish a claim for fraud under Oregon
law, Plaintiffs must allege a materially false statement made
knowingly with the intent to induce reliance, which causes
harm as a proximate result of such detrimental reliance.
Munson v. Wells Fargo Bank, 2018 WL 6515131, at *3
(D. Or. Dec. 11, 2018). Plaintiffs “must state with
particularity the circumstances constituting fraud.”
Fed.R.Civ.P. 9(b). This stringent pleading standard requires
plaintiffs to allege “the who, what, when, where, and
how” of the alleged fraudulent conduct. Taylor v.
Gorilla Capital, Inc., 2018 WL 3186946, at *3 (D. Or.
June 28, 2018); Munson, 2018 WL 6515131, at *3
(plaintiffs must allege “the time, place and specific
content of the false representation as well as the identities
of the parties to the misrepresentation.”).
instead recite the elements required to establish a claim for
fraud and assert that Wells Fargo engaged in fraud when it
failed to produce documents regarding their loan, and that
Wells Fargo engaged in fraud when Plaintiffs were not able to
obtain copies of loan documents from Wells Fargo. Such
conclusory assertions are not sufficient to establish a
plausible claim for relief under the pleading standard
because they do not establish “the who, what, when,
where, and how” of Wells Fargo's alleged fraudulent
conduct. Taylor, 2018 WL 3186946, at *3.
also reference RESPA, but do not describe how Defendants
violated RESPA nor what factual allegations support that
purported RESPA claim. This added claim, too, fails to state
any claim upon which relief may be granted.
Court gave Plaintiffs leave to amend their prior complaint in
the event that they could overcome the deficiencies in their
earlier pleadings. The amended complaint does not overcome
those deficiencies, and the Court does not have reason to
believe Plaintiffs could state a plausible claim if given
leave to amend again. Under the circumstances, the Court may
act “within its discretion to deny leave to amend when,
” as is the case here, “amendment would be
futile.” Ventress v. Japan Airlines, 603 F.3d
676, 680 (9th Cir. 2010). Defendants' motions to dismiss
(ECF 65 and ECF 66) are therefore GRANTED. Plaintiffs'
second amended complaint (ECF 63) is DISMISSED with