FILED
United States Court of Appeals
Tenth Circuit
June 9, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
KRISTEN JENSEN;
RICHARD M. JENSEN,
Plaintiffs-Appellants,
v. No. 10-4147
(D.C. No. 1:09-CV-00169-TS)
AMERICA’S WHOLESALE (D. Utah)
LENDER; COUNTRYWIDE HOME
LOANS, INC.; BAC HOME LOANS
SERVICING, L.P.; BANK OF
AMERICA, N.A.; SCOTT
LUNDBERG; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEM, INC.; RECON TRUST
COMPANY, N.A.; WENDY
MCKNIGHT; JOHN AND JANE
DOES 1-100; TRUSTEES 1-100,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before MATHESON, McKAY, and EBEL, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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, ___ F.3d ___, 2011
WL 1678070, at *2 (10th Cir. May 5, 2011). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, ‘to state a
1
We afford the Jensens’ pro se pleadings and materials a liberal
construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
2
The Jensens’ failure to advance any argument to support their other claims
forfeits appellate review of those claims. See United States v. Yelloweagle,
___ F.3d ___, 2011 WL 1632095, *at 5 (10th Cir. May 2, 2011); see also Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“This
court has repeatedly insisted that pro se parties follow the same rules of procedure
that govern other litigants.” (brackets and quotation omitted)).
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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting 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.” Id. at 1949. Although the complaint need not recite
“detailed factual allegations, . . . the 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 Bluecross 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.
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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
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 foreclosure of their home. While
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this might suggest “that some plaintiff could prove some set of facts in support of
the pleaded claims, . . . the complaint must give the court reason to believe that
this plaintiff has a reasonable likelihood of mustering factual support for these
claims.” Robbins v. Okla., 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] entitled 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 foreclosure 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
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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
Entered for the Court
David M. Ebel
Circuit Judge
3
To the extent the Jensens appeal the denial of their request to amend on
futility grounds, we perceive no abuse of discretion. See United States ex rel.
Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009).
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