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GKP, LLC v. Wells Fargo & Co.

United States District Court, Sixth Circuit

September 24, 2013

GKP, LLC, et al. Plaintiffs,
v.
WELLS FARGO & COMPANY, Defendant.

MEMORANDUM OPINION AND ORDER

DONALD C. NUGENT, District Judge.

Defendant Wells Fargo & Company ("Wells Fargo") moves to dismiss the Complaint of Plaintiffs GKP, LLC and George Primbas under Federal Rules of Civil Procedure 12(b)(6) (failure to state a claim upon which relief can be granted) and 9(b) (failure to plead fraud with the requisite particularity). Plaintiffs have responded to the Motion to Dismiss, and Defendant has replied. Thus, the Motion is ripe for consideration. For the reasons stated, Wells Fargo's Motion to Dismiss (ECF #4) is GRANTED.[1]

I. FACTS

Plaintiffs allege four claims against Wells Fargo arising out of an alleged failure by an entity known as The Money Store Investment Corporation to disburse to Plaintiffs a $319, 600 to $425, 000 loan in 1998 or 1999. The loan purportedly was for the purchase of property and construction of a Dairy Queen ice cream store in New Jersey. Specifically, Plaintiffs allege the following causes of action:

1. Breach of Contract (Count I);
2. Promissory Estoppel (Count II);
3. Fraudulent Misrepresentation (Count III); and
4. Intentional Interference With Contract (Count IV).

Plaintiffs do not attach to the Complaint the contract (loan agreement) upon which this case is premised, nor do they set forth with any specificity the terms of that contract. There is nothing in the Complaint to indicate, for example, what conditions precedent might have required satisfaction before Defendant incurred any duty to disburse funds. There is no evidence before the Court to show the contract's precise terms and conditions or signatories. Indeed, at a status conference with this Court held on September 18, 2013, counsel for Plaintiffs conceded that he had not seen a copy of the contract prior to filing the Complaint, or ever. Wells Fargo claims that it does not possess a copy of the contract 14 or 15 years after the relevant events.[2]

What Plaintiffs did attach to the Complaint is a Construction Mortgage dated May 27, 1998 between GKP, LLC of 2000 Route 88, Brick, N.J. 08723 - not Mr. Primbas individually - and the Money Store Investment Corporation of Sacramento, California. By its terms, the Construction Mortgage is governed by New Jersey law.

II. STANDARD OF REVIEW

In considering a motion to dismiss under Rule 12(b)(6), the Court must assess, given the material required to be in the complaint, whether the complainant can prove a set of facts entitling the complainant to recovery on the allegations against the moving party. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). In making this assessment, the Court must take only well-pleaded factual allegations as true and reject allegations that are nothing more than "a formulaic recitation of the elements of a cause of action." Twombly, 127 S.Ct. at 1964-65; Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009).

The standard articulated in Iqbal and Twombly is designed to screen out more than "little green men" cases; the standard is designed to screen out cases that, while not utterly impossible, are implausible. Courie v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629-30 (6th Cir. 2009). As explained below, Plaintiffs' Complaint fails to state a claim that is plausible on its face.

III. ANALYSIS

A. Mr. Primbas Lacks ...


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