Dylan Consulting Services Llc v. Singlecare Services Llc

MOTION to Dismiss for Failure to State a Claim

D. Ariz.September 13, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. Crystal Lopez (Arizona Bar 029423) MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO 2029 Century Park East Suite 1370 Los Angeles, CA 90067 (310) 586-3203 ECLopez@mintz.com David Barmak (Pro Hac Vice Application Forthcoming) Matthew Cohen (Pro Hac Vice Application Forthcoming) MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO 701 Pennsylvania Avenue N.W., Suite 900 Washington, DC, 20004 (202) 434-7300 DBarmak@mintz.com MCohen@mintz.com Attorneys for SingleCare Services, LLC IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Dylan Consulting Services, LLC, Plaintiff, vs. SingleCare Services, LLC; Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No.: 2:16-cv-02984-GMS MOTION TO DISMISS COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND MEMORANDUM IN SUPPORT THEREOF The Complaint filed by Plaintiff Dylan Consulting Services, LLC (“Plaintiff” or “Dylan Consulting”) should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because it fails to assert any factual allegations concerning Defendant SingleCare Services, LLC’s (“SingleCare”) purported breach of contract. Rather, the Complaint simply recites the thread-bare elements of a breach of contract claim and states in conclusory fashion that SingleCare breached its contracts with Dylan Consulting. Given the absence of any Case 2:16-cv-02984-GMS Document 5 Filed 09/13/16 Page 1 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 factual allegations regarding SingleCare’s purported breach of contract, the Complaint must be dismissed for failure to state a claim. I. BRIEF PROCEDURAL HISTORY Dylan Consulting filed its Complaint on August 12, 2016 in the Superior Court of Arizona for Maricopa County. On September 6, 2016, SingleCare removed the Complaint to this Court based on diversity jurisdiction. (Dkt. No. 1). SingleCare submits this Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and 81(c)(2)(C). II. LEGAL STANDARD The Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) that a plaintiff must allege sufficient facts in the complaint such that the claims are plausible on their face. The Court amplified its holding in Twombly two years later when it stated that “threadbare recitations of the elements of a cause of action supported only by conclusory statements are not enough to survive a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The holdings in Twombly and Iqbal address the quality of the facts that must be pleaded in a case such as this one. This Court of course applies the Twombly and Iqbal pleading standard when deciding a motion to dismiss for failure to state a claim. A successful Rule 12 (b)(6) motion must show either the complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its theory. Kovacs v. Sentinel Ins. Co. Ltd., 2016 U.S. Dist. LEXIS 85997, at *3 (D. Ariz. July 1, 2016) (citing Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). The Plaintiff’s obligation to provide the grounds for relief requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Airbus DS Optronics GmbH v. Nivisys, LLC, 2016 U.S. Dist. LEXIS 58684, at *6 (D. Ariz. May 3, 2016) (citing Twombly, 550 U.S. at Case 2:16-cv-02984-GMS Document 5 Filed 09/13/16 Page 2 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 555). This is so because the general rules of pleading set out in Rule 8(a)(2) require “a ‘showing,’ rather than a blanket assertion, of entitlement to relief, as without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing Twombly, 550 U.S. at 555, n.3). III. ARGUMENT Plaintiff’s Complaint falls far short of the pleading requirements set forth in the Federal Rules as interpreted and applied by the Supreme Court in Twombly and Iqbal. After setting forth four background and jurisdictional allegations at ¶¶ 1-4, and reincorporating them into Count One, Plaintiff merely alleges that the parties entered into two written agreements (¶ 5); that SingleCare failed and refused to perform its obligations and duties under the agreements and breached (¶ 6); that, as a result, Dylan Consulting has sustained damages (¶ 7); and finally, that the matter arises out of contract (¶ 8). These allegations are an almost verbatim recitation of the elements of breach of contract under Arizona law: (1) the existence of a contract; (2) breach of the contract; and (3) resulting damages. Thomas v. Wells Fargo Bank NA, 2011 U.S. Dist. LEXIS 79883, at *4-5 (D. Ariz. July 21, 2011) (Snow, J.). There is not a single factual allegation pertaining to the parties’ background, course of dealing, or contractual relationship; the provisions of the contracts that are at issue in this case; the parties’ respective obligations and duties under those provisions; when and how SingleCare allegedly breached the contract; and how exactly Dylan Consulting has allegedly been damaged. Simply put, Fed. R. Civ. P. 8 does not allow Dylan Consulting to move forward to discovery simply by reciting the elements of a breach of contract action without also alleging the specific underlying facts on which its claims are based. See, e.g., Cameron v. Wells Fargo Bank NA, 2014 U.S. Dist. LEXIS Case 2:16-cv-02984-GMS Document 5 Filed 09/13/16 Page 3 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 95311, at *13-15 (July 14, 2014, D. Ariz.) (Snow, J.) (breach of contract claim dismissed because complaint “does not allege enough factual material about the contracts or how they were breached”). IV. CONCLUSION The Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because Plaintiff’s bare recitation of the elements of a breach of contract claim without alleging specific facts showing that it is entitled to the relief it seeks is insufficient and fails, as a matter of law, to state a claim upon which relief may be granted. DATED this 13th day of September 2016. MINTZ LEVIN COHN FERRIS GLOVSKY & POPEO, PC By: s/ E. Crystal Lopez E. Crystal Lopez (Bar No. 029423) 2029 Century Park East Suite 1370 Los Angeles, CA 90067 Telephone: (310) 586-3203 Facsimile: (310) 586-3202 ECLopez@mintz.com David Barmak (pro hac vice forthcoming) Matthew Cohen (pro hac vice forthcoming) 701 Pennsylvania Avenue, NW Suite 900 Washington, DC 20004 Telephone: (202) 434-7300 Facsimile: (202) 434-7400 DBarmak@mintz.com MCohen@mintz.com Attorneys for Defendant SingleCare Services, LLC Case 2:16-cv-02984-GMS Document 5 Filed 09/13/16 Page 4 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Certificate of Service I hereby certify that on September 13, 2016, the foregoing document was electronically transmitted to the Clerk of the Court using the CM/ECF System which will send notification of such filing and transmittal of a Notice of Electronic Filing to all CM/ECF registrants including counsel for Plaintiff. I have also emailed a copy of the Motion to Plaintiff’s counsel. Upon receipt of the Notice of Electronic Filing, a copy of the attached document and Notice of Electronic Filing will be hand delivered to the assigned judge. s/ E. Crystal Lopez E. Crystal Lopez Case 2:16-cv-02984-GMS Document 5 Filed 09/13/16 Page 5 of 5