Free Motion to Dismiss - District Court of California - California

Case 5:08-cv-00868-RMW

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Filed 05/02/2008

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Stephen M. Rummage, pro hac vice 2 Jonathan M. Lloyd, pro hac vice Martin Fineman (Cal. Bar No. 104413) 3 Sam N. Dawood (Cal. Bar No. 178862) DAVIS WRIGHT TREMAINE LLP 4 505 Montgomery Street, Suite 800 San Francisco, California 94111-6533 5 Telephone: (415) 276-6500 Facsimile: (415) 276-6599 6 Email: [email protected] [email protected] 7 8 Attorneys for Defendant Washington Mutual Bank 9 10 11 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE

DAVIS WRIGHT TREMAINE LLP

12 SIDNEY SCHOLL and FELTON A. SPEARS, ) JR., on behalf of themselves and all others ) Case No. 5:08-cv-00868 (HRL) 13 similarly situated, ) ) CLASS ACTION 14 Plaintiffs, ) ) DEFENDANT WASHINGTON MUTUAL 15 v. ) BANK S NOTICE OF MOTION AND 16 ) MOTION TO DISMISS PLAINTIFFS WASHINGTON MUTUAL, INC., a Washington ) FIRST AMENDED COMPLAINT 17 corporation; WASHINGTON MUTUAL BANK, ) 18 FA (aka WASHINGTON MUTUAL BANK); ) (Fed. R. Civ. P. 12(b)(1) and 12(b)(6)) FIRST AMERICAN EAPPRAISEIT, a Delaware) 19 corporation; and LENDER S SERVICE, INC., ) Date: Tuesday, July 15, 2008 ) Time: 10:00 a.m. 20 Defendants. ) Department: SJ, Courtroom 2, 5th Floor ) 21 22 23 24 25 26 27 28
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DEFENDANT WASHINGTON MUTUAL BANK S NOTICE OF MOTION Case No. 5:08-cv-00868 (HRL)
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Case 5:08-cv-00868-RMW

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1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 3 4 5 6 7 8 9 10 11 PLEASE TAKE NOTICE that on Tuesday, July 15, 2008, at 10:00 a.m.,1 or as soon thereafter as the matter may be heard in Courtroom Two of the United States District Court for the Northern District of California, San Jose Division, located at 280 South First Street, Fifth Floor, San Jose, California, 95113, defendant Washington Mutual Bank, a federal savings association ( WMB ), will and hereby does move this Court for an order dismissing the First Amended Complaint for Damages, Equitable, Declaratory and Injunctive Relief filed by plaintiffs on March 28, 2008, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). WMB makes this motion based on the grounds that each of Plaintiffs seven Causes of Action (i.e., for (1) violation of the Real Estate Settlement Procedures Act ( RESPA ), 12 U.S.C. § 2607 et seq., (2) unlawful business practices in violation of the California Unfair Competition Law ( UCL ), Business & Professions Code § 17200 et seq. (3) unfair business practices in violation of the California UCL, (4) fraudulent business practices in violation of the California UCL, (5) violation of the Consumers Legal Remedies Act ( CLRA ), Cal. Civ. Code § 1750 et. seq., (6) breach of contract, and (7) quasi contract/unjust enrichment) fails to state a claim upon which relief can be granted, and that the Court lacks subject matter jurisdiction over Plaintiffs claims under the UCL. WMB asks that the Court dismiss the complaint with prejudice because (a) on the admitted facts, plaintiffs cannot allege a federal claim under RESPA, and (b) plaintiffs state law claims fall short on both federal law and state law grounds, because federal law, including the Home Owners Loan Act ( HOLA ) and regulations promulgated thereunder, preempts plaintiffs claims based on state law, and in any event, plaintiffs have not properly alleged any of their state law claims. This Motion rests on the concurrently filed Memorandum of Points and Authorities, the Request for Judicial Notice and the attachments thereto, the pleadings and records on file, such

DAVIS WRIGHT TREMAINE LLP

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Pursuant to the Court s Standing Order Regarding Case Management in Civil Cases, Counsel 27 for Washington Mutual Bank contacted plaintiffs counsel (as well as counsel for the other defendants) at the email addresses listed on the Electronic Court Filing system on May 1, 2008, to 28 confer regarding the hearing date for this motion. All counsel have agreed on the noting date set forth above.
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DEFENDANT WASHINGTON MUTUAL BANK S NOTICE OF MOTION Case No. 5:08-cv-00868 (HRL)
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further papers as the parties may file in connection with this Motion, and such further argument and evidence as the parties may present in connection with the hearing on this Motion. Respectfully submitted this 2nd day of May, 2008. DAVIS WRIGHT TREMAINE LLP By /s/ Stephen M. Rummage Stephen M. Rummage, pro hac vice Jonathan M. Lloyd, pro hac vice Martin Fineman (Cal. Bar No. 104413) Sam N. Dawood (Cal. Bar No. 178862) Attorneys for Defendant Washington Mutual Bank

DAVIS WRIGHT TREMAINE LLP

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DEFENDANT WASHINGTON MUTUAL BANK S NOTICE OF MOTION Case No. 5:08-cv-00868 (HRL)
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