No. 10-4147.United States Court of Appeals, Tenth Circuit.
June 9, 2011.
Appeal from the United States District Court for the District of Utah.
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Richard M. Jensen, Brigham City, UT, pro se.
Kristen Jensen, Brigham City, UT, pro se.
Eric P. Accomazzo, Esq., Ian T. Hicks, Bloom Murr Accomazzo, P.C., Denver, CO, Matthew Ball, Ronald G. Russell, Pan-Brown Gee Loveless, P.C., Salt Lake City, UT, for Defendants-Appellees.
Before MATHESON, McKAY, and EBEL, Circuit Judges.
ORDER AND JUDGMENT[*]
DAVID M. EBEL, Circuit Judge.
Richard and Kristen Jensen, proceeding pro se, brought this action, alleging that defendants conspired to foreclose on their home[1] In their amended pro se complaint, the Jensens claimed (1) extortion; (2) fraud; (3) violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962; (4) civil conspiracy; (5) violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.; (6) breach of the implied covenant of good faith and fair dealing; and (7) unjust enrichment. They sought money damages, as well as declaratory and injunctive relief, and eventually moved to amend their complaint a second time. The district court denied leave to amend on grounds of futility and dismissed the action with prejudice for failure to state a claim, see Fed.R.Civ.P. 12(b)(6). The Jensens now appeal, arguing that they could establish their fraud claim if allowed to engage in discovery.[2]
“We review de novo a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6).” Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011). “To 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.'” Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009) (quoting Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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.” Id.
at 1949. Although the complaint need not recite “detailed factual allegations, . . . the
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factual allegations must be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009) (quotation omitted).
The district court determined that the Jensens’ fraud claim was implausible and failed to satisfy the heightened pleading standard of Federal Rule of Civil Procedure 9(b). See
Fed.R.Civ.P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”); see also United States ex rel. Sikkenga v. Regence Bluec-ross Blueshield of Utah, 472 F.3d 702, 726-27 (10th Cir. 2006) (stating that Rule 9(b) requires a plaintiff to “set forth the time, place, and contents of the false representation, the identity of the party making the false statements and the consequences thereof (internal quotation marks omitted)). The court reasoned that the Jensens offered only “labels and conclusions . . . devoid of factual enhancement,” and “broad, vague, and conclusory allegations [that failed to] meet the stricter requirements of Rule 9(b).” R., Vol. 1 at 273. We agree with this assessment.
The amended complaint generally alleged that “Defendants established a pattern and practice of harming [the Jensens].”Id. at 44. Among other things, the Jensens accused defendants of failing to properly credit their mortgage payments or correctly calculate their interest charges. They also charged defendants with manipulating their payment history to simulate a default and denying them an adjustment on their interest rate. Once the Jensens were in default, the amended complaint says defendants refused to stop foreclosure proceedings, even after the Jensens paid the amount due. To support their fraud claim, the Jensens averred that “Defendants individually and/or through [their] authorized agents” made “false and misleading” statements “prior to and after the Notice of Default and Election to Sell.” Id. at 48. The alleged misrepresentations pertained to the extent of the Jensens’ delinquency, their likelihood of completing a loan modification process, and the time it would take to complete that process.
As the district court correctly observed, these are “the type of `unadorned, the-defendant-unlawfully-harmed-me accusation[s]’ . . . rejected by the Supreme Court.” Id. at 272 (quoting Iqbal, 129 S.Ct. at 1949). There are no allegations identifying the culpable defendants or their incriminating misconduct; nor are there any facts setting forth “the who, what, when, where and how of the alleged I fraud,”Sikkenga, 472 F.3d at 727. Rather, the Jensens simply speculate that defendants and/or their agents collectively engaged in various instances of wrongdoing that eventually culminated in the fore-closure of their home. While this might I suggest “that some plaintiff could prov some set of facts in support of the pleaded claims, . . . the complaint must give the court reason to believe tha this plaintiff has a reasonable likelihood of mustering factual support for these claims.”Robbins v. Ohio., 519 F.3d 1242, 1247 (10th Cir. 2008) (quotation omitted). As pleaded, the amended complaint “has alleged — but it has not shown — that the [Jensens are] en-titled to relief.” Iqbal, 129 S.Ct. at 1950
(quotations omitted). It follows, then, that the Jensens fail to meet the heightened pleading standard of Rule 9(b).
The Jensens do not attempt to bolster the sufficiency of their complaint on appeal. They refer to no facts to substantiate their allegations of harm and cite no specifics underlying their claim of fraud. Instead, they maintain their broad accusations against defendants collectively, and summarily conclude that the district court erred because it misunderstood the fore-closure
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process. Though they insist they could establish their fraud claim with discovery, our pleading standard “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 129 S.Ct. at 1949. And while we do not doubt the veracity of the Jensens’ allegations, the broad and conclusory nature of those allegations preclude us from evaluating the merit of their claim. Simply put, the Jensens failed to plead their fraud claim with the particularity required to satisfy our pleading standard, and their appellate brief does not address that deficiency. Accordingly, having reviewed the record, the parties’ appellate materials, and the district court’s well-reasoned order, we AFFIRM the district court for substantially the same reasons articulated in the court’s order dated July 8, 2010.[3]