United States District Court, D. Montana, Billings Division
JAMES L. BARKER, JEANNE A. BARKER, Plaintiffs,
BANK OF AMERICA, N.A., ONEWEST BANK, CIT BANK, N.A., FIRST AMERICAN TITLE COMPANY OF MONTANA, INC., Trustee, and CHARLES PETERSON, Trustee, Defendants.
P. WATTERS, United States District Judge
CIT Bank N.A.,  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).
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).
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
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.
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.
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)).
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 ...