United States District Court, D. Oregon
CLINTON L. TAPPER Taylor & Tapper Attorneys for Plaintiff
E. APPLEGATE Larkins Vacura Kayser LLP, JESSE LINEBAUGH KWESI
D. ATTA-KRAH Faegre Baker Daniels LLP Attorneys for Defendant
OPINION AND ORDER
J. BROWM UNITED STATES SENIOR DISTRICT JUDGE
matter comes before the Court on Defendant Athene Annuity
& Life Assurance Company of New York's Motion (#8) to
Dismiss. The Court concludes the record on this Motion is
sufficiently developed such that oral argument would not be
helpful. For the reasons that follow, the Court
GRANTS in part and DENIES in
part Defendant's Motion.
following facts are taken from Plaintiff Kathleen
Tibbets's First Amended Complaint and the parties'
filings related to Defendant's Motion to Dismiss and are
taken as true unless otherwise noted.
point in 2008 Plaintiff purchased a $25, 000 life-insurance
policy from Defendant. Plaintiff paid $650 per quarter on the
policy at all relevant times.
April 2018 Defendant contacted Plaintiff by telephone and
"represented to her a build up of cash value in her
policy and solicited her taking a loan against the
policy." First Am. Compl. at ¶ 12. On April 26,
2018, Defendant advised Plaintiff by letter that the
"current cash value" of her policy was "$8,
546.24." Decl. of Clinton Tapper, Ex. 5 at 1.
2018 Plaintiff took a loan against the policy in the amount
of $8, 000.
September 14, 2018, Defendant advised Plaintiff by letter:
Recently, we were made aware that there was a system issue
that caused your policy to reflect the incorrect loan value.
Due to this problem, we inadvertantly [sic] allowed
you to take an additional $8, 000.00 policy loan that was not
actually available. Now that the system has been corrected,
your policy does not have enough cash value to cover the
coverage costs and remain active.
Unfortunately, we require a repayment of this policy loan to
bring the policy back to a positive cash value standing. In
order to bring your policy current, we need a minimum payment
of $7, 000.00 in the enclosed self-addressed envelope in the
next 20 days. If you are unable to make this payment, please
contact our office to make arrangements for a repayment plan.
Decl., Ex. 2 at 1.
September 2018 through March 2019 Plaintiff "attempted
to negotiate affordable repayment terms with [Defendant], but
[Defendant] refused." First Am. Compl. at ¶ 16.
March 21, 2019, Defendant cancelled Plaintiff's policy.
22, 2019, Plaintiff filed a Complaint against Defendant in
this Court alleging claims for breach of contract, financial
elder abuse, fraud, negligent misrepresentation, and money
had and received.
29, 2019, before Defendant filed a responsive pleading,
Plaintiff filed a First Amended Complaint in which she
asserts claims against Defendant for breach of contract,
financial elder abuse, fraud, negligent misrepresentation,
money had and received, and breach of the duty of good faith
and fair dealing.
September 9, 2019, Defendant filed a Motion to Dismiss
[Plaintiff's First Amended] Complaint on the grounds that
Plaintiff failed to state a claim and that Plaintiff has not
suffered any damages. The Court took Defendant's Motion
under advisement on October 21, 2019.
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to "state a
claim to relief that is plausible on its face."
[Bell Atlantic v. Twombly, 550 U.S. 554');">550 U.S. 554, ] 570, 127
S.Ct. 1955 [(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. Id. at 556. . . . The
plausibility standard is not akin to a "probability
requirement," but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Ibid. Where a complaint pleads facts that are
"merely consistent with" a defendant's
liability, it "stops short of the line between
possibility and plausibility of 'entitlement to
relief.'" Id. at 557, 127 S.Ct. 1955');">127 S.Ct. 1955
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
See also Bell Atlantic, 550 U.S. at 555-56. The
court must accept as true the allegations in the complaint
and construe them in favor of the plaintiff. Din v.
Kerry, 718 F.3d 856, 859 (9th Cir. 2013).
ruling on a 12(b)(6) motion, a court may generally consider
only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice." Akhtar v. Mesa, 698 F.3d
1202, 1212 (9th Cir. 2012)(citation omitted). A
court, however, "may consider a writing referenced in a
complaint but not explicitly incorporated therein if the
complaint relies on the document and its authenticity is
unquestioned." Swartz v. KPMG LLP, 476 F.3d
756, 763 (9th Cir. 2007) (citation omitted).
noted, Defendant moves to dismiss Plaintiff s First Amended
Complaint on the grounds that Plaintiff fails to state a
claim and that Plaintiff has not suffered any damages.
Plaintiff's First Claim for Breach of Contract
moves to dismiss Plaintiff's First Claim for breach of
contract on the grounds that Plaintiff does not allege
sufficient facts to state a claim and that Plaintiff has not
suffered any damages.
Failure to State a Claim
state a claim for breach of contract, plaintiff must allege
the existence of a contract, 'its relevant terms,
plaintiff's full performance and lack of breach and
defendant's breach resulting in damage to
plaintiff.'" Slover v. Or. Bd. of Clinical Soc.
Workers, 144 Or.App. 565, 570 (1996)(quoting Fleming
v. Kids and Kin Head Start, 71 Or.App. 718, 721 (1985)).
First Amended Complaint Plaintiff alleges the following as to
all claims: She purchased a life-insurance policy from
Defendant in 2008; she made payments from 2008 until
Defendant cancelled the policy in March 2019; Defendant
advised her in April 2018 that her policy had a cash value of
approximately $8, 000 and that she could take a loan against
the policy up to that amount; she took a loan against the
policy in June 2018 in the amount of $8, 000; Defendant
advised her in September 2018 that her policy did not
actually have a value of $8, 000, and, therefore, she had to
repay $7, 000 to Defendant; and Defendant cancelled her
policy on March 21, 2019. Plaintiff also alleges the
following facts specifically as to her First Claim for breach
Plaintiff has done everything required on her part under the
terms of the Policy.
The policy promised Plaintiff could take out loans against
the policy value.
Defendant breached the contract by providing [P]laintiff
loans above the policy value.
The policy promised payment upon Plaintiff's death in the
amount of $25, 000.
Defendant anticipatorily breached the contract by terminating
the policy, and refusing to pay the $25, 000 death benefit.
Defendant has breached the policy by wrongfully terminating
As a result of the Breach, Plaintiff has been denied present
value in the policy, has overpaid premiums and will be
wrongfully denied $25, 000.
Am. Compl. at ¶¶ 19-25.
asserts in its Motion to Dismiss that in her First Amended
Complaint Plaintiff fails to allege any specific terms of the
Policy that Defendant breached. See, e.g., Blitz v.
Google, Inc., No. 18- 00059 DKW-KJM, 2018 WL 988052, *3
(D. Haw. Feb. 20, 2018) ("In breach of contract actions
. . . the complaint must, at minimum, cite the contractual
provision allegedly violated."). Courts, however, have
made clear that although "[t]o claim a breach of
contract in federal court the complaint must identify the
specific provision of the contract allegedly breached by the
defendant," that does not mean a plaintiff is required
"Ato attach the contract or recite the
contract's terms verbatim. Rather, the plaintiff must
identify with specificity the contractual obligations
allegedly breached by the defendant.'" Kaar v.
Wells Fargo Bank, N.A., No. C 16-01290 WHA, 2016 WL
3068396, at *1 (N.D. Cal. June 1, 2016)(quoting Misha
Consulting Grp., Inc. v. Core Educ. and Consulting
Solutions, Inc., No. C-13-04262-RMW, 2013 WL
6073362, at *1 (N.D. Cal. Nov. 15, 2013). As the
Misha court explained:
The parties dispute the legal standard for sufficiently
pleading the existence of a contract. CORE cites Otworth
v. Southern Pac. Transp. Co., 166 Cal.App.3d452 (1985),
which holds that "the terms [of the contract] must be
set out verbatim in the body of the complaint or a copy of
the written instrument must be attached and incorporated by
reference." Id. at 459. Misha, on the other
hand, cites Boland, Inc. v. Rolf C. Hagen (USA)
Corp., 685 F.Supp.2d 1094, 1102 n.7 (E.D. Cal. 2010),
which collects district court cases in this circuit,
concluding that most district courts in this circuit decline
to follow Otworth. . . . For example, James
River Ins. Co. v. DCMI, Inc., No. 11-06345, 2012 WL
2873763 (N.D. Cal. July 12, 2012) holds that 'the
majority rule in district courts in this circuit rejects
application of Otworth in federal actions; rather,
the sufficiency of the complaint is governed according to the
Federal Rules of Civil Procedure and federal law interpreting
those rules.'" Id. at *3. Under the federal
rules, a "plaintiff may set forth the contract verbatim
in the complaint or plead it, as indicated, by exhibit, or
plead it according to its legal effect." Fed.R.Civ.P.
Official Form 3, 12; see also Fed. R. Civ. P. 84
(declaring these forms to be sufficient).
Identifying the specific provision of the contract allegedly
breached by the defendant does not reguire the plaintiff to
attach the contract or recite the contract's terms
verbatim. Rather, the plaintiff must identify with
specificity the contractual obligations allegedly breached by
the defendant. This is "enough to raise a right to
relief above the speculative level." Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007).
2013 WL 6073362, at *1.
Misha the plaintiff alleged in the complaint the
date that the defendant hired the plaintiff "to provide
software management and maintenance services," the
consideration that the defendant was to pay the plaintiff for
those services, that the defendant failed to "make
payments when due," and that the plaintiff
"rendered the agreed-upon services." Id.,
at *2. The court noted "[a]lthough the complaint could
have been more specific," the "allegations put the
defendants on notice and give rise to a plausible claim for
like the plaintiff's allegations in Misha,
Plaintiff s allegations in her First Amended Complaint could
be more specific. Federal Rules of Civil Procedure 8(a)
provides: A pleading that sets forth a claim must contain
"a short and plain statement of the claim showing the
pleader is entitled to relief." "Rule 8's
liberal notice pleading standard . . . requires that the
allegations provide the opposing party with fair notice of
what the . . . claim is and the grounds upon which it
rests." Tribble v. Raytheon Co., No. 09-56669,
2011 WL 490992, at *1 (9th Cir. Feb. 14, 2011).
on Rule 8, Tibbie, and Misha the Court
concludes on this record that Plaintiff s allegations are
sufficient to put Defendant on notice and to give rise to a
plausible claim for breach of contract.