Opinion
No. CV 15-72-BU-SEH
07-11-2016
UNITED STATES OF AMERICA, Plaintiff, v. (1) JAMES TARPEY; (2) PROJECT PHILANTHROPY, INC. d/b/a DONATE FOR A CAUSE; (3) TIMESHARE CLOSINGS, INC. d/b/a RESORT CLOSINGS, INC.; (4) RON BROYLES; (5) CURT THOR; and (6) SUZANNE CROWSON f/k/a SUZANNE TARPEY; Defendants.
ORDER
Defendants James Tarpey, Timeshare Closings, Inc. d/b/a Resort Closings, Inc., and Project Philanthropy, Inc. have moved to dismiss Defendant Roy Broyles' crossclaim.
See Docs. 65 and 67.
The crossclaim as pleaded is inadequate to satisfy the pleading requirements of Bell Atlantic Corporation v. Twombley and Ashcroft v. Iqbal and later Ninth Circuit decisions. In Moss v. U.S. Secret Service, the Ninth Circuit noted that "[p]rior to Twombly, a complaint would not be found deficient if it alleged a set of facts consistent with a claim entitling the plaintiff to relief." However, post-Twombly, complaints only alleging "labels and conclusions," "formulaic recitation[s]" or "naked assertion[s]" are inadequate pleadings and will not survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss. Instead, "[t]o 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.'" "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory."
550 U.S. 544 (2007).
556 U.S. 662 (2009).
Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009) (citation omitted).
Twombly, 550 U.S. at 555, 557.
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see Cousins v. Lockyer, 568 F.3d 1063, 1067-68 (9th Cir. 2009) (finding the same).
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (citation omitted).
ORDERED:
Defendants' James Tarpey and Timeshare Closings, Inc. d/b/a Resort Closings, Inc. Motion to Dismiss Defendant Ron Broyles' Crossclaim and Defendant Project Philanthropy, Inc.'s Motion to Dismiss Defendant Ron Broyles' Crossclaim are GRANTED, subject to leave to and including July 22, 2016, in which to file an amended crossclaim meeting the pleadings requirements of Twombly and Iqbal, and current Ninth Circuit precedent.
Doc. 65.
Doc. 67. --------
DATED this 11th day of July, 2016.
/s/_________
SAM E. HADDON
United States District Court