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Barker v. Bank of America, N.A.

United States District Court, D. Montana, Billings Division

February 15, 2018

JAMES L. BARKER, JEANNE A. BARKER, Plaintiffs,
v.
BANK OF AMERICA, N.A., ONEWEST BANK, CIT BANK, N.A., FIRST AMERICAN TITLE COMPANY OF MONTANA, INC., Trustee, and CHARLES PETERSON, Trustee, Defendants.

          AMENDED ORDER

          SUSAN P. WATTERS, United States District Judge

         I. Introduction

         Defendant CIT Bank N.A., [1] has moved to dismiss Plaintiffs' First Amended Complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted. (Doc. 11). On December 8, 2017, Magistrate Judge Timothy Cavan issued his Findings and Recommendations recommending that this Court grant Defendants' Motion to Dismiss without prejudice and with leave to amend. (Doc. 24).

         When a party timely objects to any portion of the magistrate judge's Findings and Recommendations, the district court must conduct a de novo review of the portions of the Findings and Recommendations to which objections are made. 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981). The district court may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate with instructions." 28 U.S.C. § 636(b)(1). The district court is not required to review the factual and legal conclusions of the magistrate judge to which the parties do not object. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

         Plaintiffs and CIT filed timely objections to Judge Cavan's Findings and Recommendations. (Docs. 28, 29). After independently reviewing and considering the objections, this Court adopts Judge Cavan's findings and recommendations, as set forth below.

         II. Relevant Background

         Neither party objects to the factual history contained in the Background section of Judge Cavan's Findings and Recommendations, accordingly, his Background section is adopted in full.

         III. Applicable Law

         A. Legal Standard

         A defendant may move under F.R.Civ.P 12(b)(6) to dismiss an action for failure to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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. 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

         For purposes of ruling on a Rule 12(b)(6) motion, a court must "accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). A court is not required to "assume the truth of legal conclusions merely because they are cast in the form of factual allegations, " however. Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011). A court may also reject factual allegations contradicted by judicially noticed material. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2OOO)(citation omitted). Finally, '"a plaintiff may plead [him]self out of court' " if he "plead[s] facts which establish that he cannot prevail on his ... claim." Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.l (9th Cir. 1997) (quoting Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995)).

         IV. Discussion

         A. Plaintiffs' objections

         Although Plaintiffs filed a document purportedly containing objections, it does not contain specific objections. (Doc. 29 at 1). Rather than cite any specific findings of fact or conclusions of law that Plaintiffs believe Judge Cavan made in error, Plaintiffs simply reiterate arguments in their brief and ...


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