Headwaters Constr. Co. v. Nat'l City Mortgage Co, Case No. CV09-119-E-EJL-REB.

• Decision Date: 26 February 2010
• Docket Number: Case No. CV09-119-E-EJL-REB.
• Citation: 720 F.Supp.2d 1182
• Parties: HEADWATERS CONSTRUCTION COMPANY, f/k/a Teton Springs Construction Company, a Wyoming corporation, Plaintiff, v. NATIONAL CITY MORTGAGE CO., an Ohio corporation; and DOES 1-X, whose true name(s) are unknown, who have been associated with, employed by, and/or were agents of Defendants, Defendants.
• Court: U.S. District Court — District of Idaho

720 F.Supp.2d 1182

HEADWATERS CONSTRUCTION COMPANY, f/k/a Teton Springs Construction Company, a Wyoming corporation, Plaintiff,

v.NATIONAL CITY MORTGAGE CO., an Ohio corporation; and DOES 1-X, whose true name(s) are unknown, who have been associated with, employed by, and/or were agents of Defendants, Defendants.

Case No. CV09-119-E-EJL-REB.

United States District Court,D. Idaho.

Feb. 26, 2010.

COPYRIGHT MATERIAL OMITTED.

Amy Wallace Potter, Faren Zane Eddins, Roy C. Moulton, Sean R. Moulton, Moulton Law Office, Driggs, ID, for Plaintiff.

Amber Nicole Dina, Givens Pursley LLP, Boise, ID, Kelly Greene McConnell, Givens Pursley, Boise, ID, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

EDWARD J. LODGE, District Judge.

On November 17, 2009, United States Magistrate Judge Ronald E. Bush issued a Report and Recommendation (Docket No. 39) in this matter. Pursuant to 28 U.S.C. § 636(b)(1), the parties had ten days in which to file written objections to the Report and Recommendation. No objections were filed by the parties.

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge.” Moreover, this Court “shall make a de novo determination of those portions of the report which objection is made.” Id. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):

The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. As the Peretz Court instructed, “to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939, 111 S.Ct. 2661 (internal citation omitted). Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251 (“Absent an objection or request for review by the defendant, the district court was not required to engage in any more formal review of the plea proceeding.”); see also Peretz, 501 U.S. at 937-39, 111 S.Ct. 2661 (clarifying that de novo review not required for Article III purposes unless requested by the parties) ....

See also Wang v. Masaitis, 416 F.3d 992, 1000 & n. 13 (9th Cir.2005). In this case, no objections were filed so the Court need not conduct a de novo determination of the Report and Recommendation.

THEREFORE, IT IS HEREBY ORDERED that the Report and Recommendation (Docket No. 39) shall be INCORPORATED by reference and ADOPTED in its entirety.

IT IS THEREFORE ORDERED that National City's Motion to Dismiss First Amended Complaint (Docket No. 21) be GRANTED in part and DENIED in part as follows:

1. National City's Motion to Dismiss as to Count I: Unjust Enrichment be GRANTED. Count I is dismissed without prejudice;

2. National City's Motion to Dismiss as to Count III: Negligent Interference with Contract be GRANTED. Count III is dismissed without prejudice;

3. National City's Motion to Dismiss as to Count IV: Breach of Contract (Assignment) be GRANTED. Count IV is dismissed without prejudice;

4. National City's Motion to Dismiss as to Count V: Breach of Contract (Third-Party Beneficiary) be DENIED.

5. National City's Motion to Dismiss as to Count VI: Promissory Estoppel be GRANTED. Count VI is dismissed without prejudice;

6. National City's Motion to Dismiss as to Count VII: Lender Liability be GRANTED. Count VII is dismissed without prejudice; and

7. National City's Motion to Dismiss as to Count VIII: Negligence be GRANTED. Count VIII is dismissed without prejudice.

REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT

RONALD E. BUSH, United States Magistrate Judge.

The Court has before it Defendant National City Mortgage Co.'s (“National City”) Motion to Dismiss First Amended Complaint (Docket No. 21). Having carefully reviewed the record, considered oral arguments, and otherwise being fully advised, the Court enters the following Report and Recommendation:

PROCEDURAL BACKGROUND

Plaintiff Headwaters Construction Company (“Headwaters”) filed its initial Complaint on January 15, 2009 in the Seventh Judicial District of the State of Idaho, in and for the County of Teton (Docket No. 1, Att. 3). ¹ National City removed the case to this Court on March 13, 2009 (Docket No. 1). On April 10, 2009, National City filed a Motion to Dismiss the Complaint (Docket No. 12). In response, Headwaters filed its First Amended Complaint on May 18, 2009 (Docket No. 16). On May 29, 2009, this Court deemed National City's Motion to Dismiss Headwaters' Complaint moot, requesting that National City respond to Headwaters' First Amended Complaint by June 12, 2009 (Docket No. 19). On June 12, 2009, National City filed the pending Motion to Dismiss (Docket No. 21).

Headwaters' First Amended Complaint alleges the following nine Counts against National City, arising out of loans between National City and a number of construction loan borrowers: (1) Count I: Unjust Enrichment; (2) Count II: Intentional Interference with Contract; (3) Count III: Negligent Interference with Contract; (4) Count IV: Breach of Contract (Assignment); (5) Count V: Breach of Contract (Third-Party Beneficiary); (6) Count VI: Promissory Estoppel; (7) Count VII: Lender Liability; (8) Count VIII: Negligence; and (9) Count IX: Priority of Liens. See First Am. Compl., pp. 19-31 (Docket No. 16). National City seeks dismissal of Counts I, III, IV, V, VI, VII, and VIII. See Mem. in Supp. of Mot. to Dismiss, p. 1 (Docket No. 22).

On July 6, 2009, Headwaters filed an Opposition to National City's pending Motion to Dismiss (Docket No. 27). The next day, on July 7, 2009, Headwaters also filed its Second Amended Complaint (Docket No. 28); two days later, however, Headwaters withdrew its Second Amended Complaint (Docket No. 29). Regardless, within its Opposition, Headwaters indicates that it “does not oppose the dismissal of [Count VI: Promissory Estoppel] without prejudice at this time.” See Opp. to Mot. to Dismiss, p. 6 (Docket No. 27).

REPORT

A. FRCP 12(b)(6) Standard

FRCP 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While a complaint attacked by an FRCP 12(b)(6) motion to dismiss “does not need detailed factual allegations,” it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555, 127 S.Ct. 1955. 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.” Id. at 570, 127 S.Ct. 1955.

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, 127 S.Ct. 1955. 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. Id. 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.

In a more recent case, the Supreme Court identified two “working principles” that underlie Twombly. See Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Id. “[FRCP] 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 1950. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. “Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

Providing too much in the complaint may also be fatal to a plaintiff. Dismissal may be appropriate when the plaintiff has included sufficient allegations disclosing some absolute defense or bar to recovery. See Weisbuch v. County of L.A., 119 F.3d 778, 783, n. 1 (9th Cir.1997) (“If the pleadings establish facts compelling a decision one way, that is as good as if depositions and other ... evidence on summary judgment establishes the identical facts.”).

A dismissal without leave to amend is improper unless it is beyond doubt that the complaint “could not be saved by any amendment.” Simpson, 452 F.3d at 1046. The Ninth Circuit has held that “in dismissals for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir.1990). “ ‘The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’ ” See Hydrick v. Hunter, 466 F.3d 676, 685 (9th Cir.2006) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

Under FRCP 12(b)(6), the Court may consider matters that are subject to judicial notice. Mullis v. United States Bankruptcy, 828 F.2d 1385, 1388 (9th Cir.1987). The...