Opinion
Case No. CV11-08063-ODW(MANx)
02-27-2012
SUCHART THONGNOPPAKUN, Plaintiff, v. AMERICAN EXPRESS BANK, a Utah Corporation; BLEIER & COX LLP, a California Limited Liability Partnership; and DOES 1 - 10, Defendants.
ORDER GRANTING
DEFENDANT'S MOTION TO
DISMISS [21]
Presently before the Court is Defendant American Express Centurian Bank's ("American Express" or "Defendant") Motion to Dismiss Plaintiff Suchart Thongnoppakun's ("Plaintiff") First Amended Complaint ("FAC") and Motion to Strike Portions of Plaintiff's FAC. (Dkt. No. 21.) Having considered the papers filed in support of and in opposition to the instant Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C. D. Cal. L. R. 7- 15. Because Plaintiff has not filed any opposition, and for the reasons discussed in Defendant's papers, the Court GRANTS Defendant's Motion to Dismiss WITH PREJUDICE.
Central District of California Local Rule 7-9 requires an opposing party to file an opposition to any motion at least twenty-one (21) days prior to the date designated for hearing the motion. C. D. Cal. L. R. 7-9. Additionally, Local Rule 7-12 provides that "[t]he failure to file any required paper, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion." C. D. Cal. L. R. 7-12.
The hearing on Defendant's Motion was set for March 12, 2012. Plaintiff's opposition was therefore due by February 20, 2012. Because February 20, 2012, was a national holiday, Plaintiff's opposition was due on February 21, 2012. See Fed. R. Civ. P. 5(a)(1)(C). As of the date of this order, Plaintiff has failed to file an opposition, nor any other filing that could be construed as a request for a continence. Plaintiff's failure to oppose may therefore be deemed consent to the granting of Defendant's Motion. Nevertheless, the Court proceeds to remark briefly on the procedural background of this case and substantive merits of Defendants' Motion.
On September 28, 2011, Plaintiff filed a Complaint in this Court alleging various claims arising out of a default judgment entered against him by American Express for an account Plaintiff claims was fraudulently opened in his name. (Compl. ¶ 7.) Plaintiff's Complaint alleged, among other things, claims unfair debt collection practices, fraud, defamation of credit, RICO, and intentional infliction of emotional distress.
On November 28, 2011, Defendant filed a motion to dismiss Plaintiff's Complaint, which Plaintiff failed to oppose. (Dkt. Nos. 7, 13.) Accordingly, on January 10, 2012, the Court granted Defendant's motion to dismiss and granted Plaintiff ten days' leave to amend. (Dkt. No. 15.) On January 18, 2012, Plaintiff successfully filed his FAC within the ten days granted for leave to amend. (Dkt. No. 16.) Nevertheless, Plaintiff has once again failed to oppose Defendant's instant Motion to Dismiss, which constitutes Plaintiff's second failure to oppose a motion to dismiss in as many months.
Despite Plaintiff's apparent disinterest in participating in motion practice in this case, the Court has carefully considered Defendant's arguments in support of its motion and agrees that Plaintiff's FAC is once again insufficient to withstand a motion to dismiss. Of particular note, Plaintiff's fraud claims continue to fall short of the requisite specificity required under Federal Rule of Civil Procedure 9(b). See Neilson v. Union Bank of Cal., 290 F. Supp. 2d 1101, 1141 (C.D. Cal. 2003) ("It is well established in the 9th Circuit that both claims for fraud and negligent misrepresentation must meet Rule 9(b)'s particularity requirements.")
Plaintiff likewise fails to plead a viable claim for intentional infliction of emotional distress claim. In order to plead a claim for intentional infliction of emotional distress, Plaintiff must alleged conduct that is "so extreme and outrageous as to exceed all bounds of that usually tolerated in a civilized society." Wilkins v. Nat'l Broad. Co., 71 Cal. App. 4th 1066, 1087 (1999) (quoting Trerice v. Blue Cross of Cal., 209 Cal. App. 3d 878, 883 (1989)) (internal quotations omitted). The facts, as stated in Plaintiff's FAC, are devoid of sufficient detail to rise to the level of outrageous conduct on the part of the Defendants.
Plaintiff's cause of action for unfair competition under California Business and Professional Code section 17200 similarly lacks sufficient factual allegations to withstand a Rule 12(b)(6) dismissal. "A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting that statutory elements of the violation." Khoury v. Maly's of Cal. Inc., 14 Cal. App. 4th 612, 619 (1993). In his FAC, Plaintiff refers to "collection activities" engaged in by the Defendants (FAC ¶ 63), however, does not give the requisite factual particularity to support this claim.
On a procedural note pertaining to Plaintiff's sixth cause of action, "[t]here is no cause of action in California for unjust enrichment." Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1370 (2010) (quoting Melchior v. New Line Prods., Inc., 106 Cal. App. 4th 779, 793 (2003). Although plaintiff may not pursue a claim of unjust enrichment, he may seek restitution. Pelletier v. Pacific WebWorks, Inc., No. CIV S-09-3503 KJM KJN, 2012 WL 43281, at *6 (E.D. Cal. Jan. 9, 2012). Additional, more complete support for the Court's dismissal of Plaintiff's FAC may be found in Defendants' moving papers
In sum, Plaintiff's failure to timely oppose Defendants' Motion to Dismiss—for the second consecutive time—may be deemed consent to the granting of Defendant's Motion. See C. D. Cal. L. R. 7-12. Nevertheless, the Court has carefully considered Defendant's arguments in support of its Motion. For the foregoing reasons, and for the additional reasons stated more fully in Defendant's Motion to Dismiss, the Court GRANTS Defendant's Motion to Dismiss Plaintiff's FAC as to Defendant American Express.Plaintiff's claims against American Express are hereby DISMISSED WITH PREJUDICE. Because the Court grants Defendant's Motion to Dismiss, Defendant's Motion to Strike is rendered moot. The March 12, 2012 hearing on this matter is VACATED, and no appearances are necessary.
This order has no bearing on the viability of Plaintiff's FAC as to Defendant Bleier & Cox, LLP.
IT IS SO ORDERED.
____________________
HON. OTIS D. WRIGHT II
UNITED STATES DISTRICT JUDGE