Appellate Case: Document: Date Filed: 09/19/2012 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS

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1 Appellate Case: Document: Date Filed: 09/19/2012 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit N. THOMAS HEATON, Plaintiff-Appellant, FOR THE TENTH CIRCUIT September 19, 2012 Elisabeth A. Shumaker Clerk of Court v. AMERICAN BROKERS CONDUIT; AMERICAN HOME MORTGAGE SERVICE INC.; RECONTRUST COMPANY, N.A.; AMERICA S WHOLESALE LENDER; BACKMAN TITLE SERVICES, f/k/a Sundance Title; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; BANK OF AMERICA, N.A, No (D.C. No. 2:11-CV TS) (D. Utah) Defendants-Appellees. ORDER AND JUDGMENT * Before PORFILIO, Senior Circuit Judge, ANDERSON and BALDOCK, Circuit Judges. * After examining the briefs and appellate record, this panel has determined unanimously to grant the parties request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 and 10th Cir. R

2 Appellate Case: Document: Date Filed: 09/19/2012 Page: 2 N. Thomas Heaton appeals the district court s dismissal of this diversity dispute for failure to state a claim. 1 We perceive no error in the district court s analysis and therefore affirm for substantially the same reasons. I Mr. Heaton originally brought this action in Utah state court in an apparent attempt to stave off the foreclosure of his home. He raised various claims for relief, generally seeking to quiet title in his name, challenge the process of securitization, and dispute defendants authority to foreclose. 2 Defendants removed the action to federal court, where they moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Mr. Heaton urged the court to remand the matter to state court, but on August 24, 2011, the district court denied his request and dismissed the action with prejudice. Final judgment was entered on September 2, On September 20, Mr. Heaton moved the district court to set aside its judgment pursuant to Federal Rules of Civil Procedure 59(e) and 60(b). Three days later, while the motion to set aside the judgment was still pending, Mr. Heaton filed a notice of appeal from the underlying dismissal order. The district court eventually 1 Because Mr. Heaton is proceeding pro se, we afford his materials a liberal construction, but we do not act as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). 2 Securitization refers to the process of pooling loans and selling them to investors on the open market. See Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194, 1197 n.2 (10th Cir. 2011)

3 Appellate Case: Document: Date Filed: 09/19/2012 Page: 3 denied the motion to set aside the judgment on November 18, and on December 20, Mr. Heaton filed an untimely notice of appeal from that decision. Recognizing the jurisdictional defect, this court issued a show cause order, to which Mr. Heaton responded on January 9, 2012, indicating that he no longer wished to appeal the district court s refusal to set aside the judgment. Given this chronology, defendants contend we have jurisdiction to review the underlying dismissal order, but not the denial of post-judgment relief. II A. Appellate Jurisdiction We first consider our jurisdiction. Mr. Heaton withdrew his challenge to the district court s denial of post-judgment relief, so we need only consider whether he perfected his appeal from the court s dismissal order. Mr. Heaton prematurely filed his first notice of appeal on September 23, 2011, before the court ruled on his motion to set aside the judgment, but the notice of appeal ripened once the district court denied that motion. See Fed. R. App. P. 4(a)(4)(B)(i); Breeden v. ABF Freight Sys., Inc., 115 F.3d 749, 752 (10th Cir. 1997). Consequently, we have jurisdiction to review the dismissal of Mr. Heaton s action, but we have no occasion to consider the order denying post-judgment relief. 3 3 The September 23 notice of appeal, in addition to its premature filing, also incorrectly designated the United States Supreme Court rather than this court as the court to which the appeal was to be taken. Federal Rule of Appellate Procedure 3(c)(1)(C) states that a notice of appeal must name the court to which the (continued) - 3 -

4 Appellate Case: Document: Date Filed: 09/19/2012 Page: 4 Apart from issues relating to the notice of appeal, we note that to the extent he could, Mr. Heaton waived any challenge to the district court s refusal to remand the case to state court by failing to advance any pertinent argument in his opening brief. See Huffman v. Saul Holdings Ltd. P Ship, 194 F.3d 1072, (10th Cir. 1999) (holding that procedural defects in the removal process can be waived, though defects in the court s subject matter jurisdiction cannot). Mr. Heaton similarly waived any argument against the district court s dismissal of his claim brought under the Consumer Sales Practices Act. See Alpine Bank v. Hubbell, 555 F.3d 1097, 1109 (10th Cir. 2009) (failure to advance any argument waives appellate review). B. Merits We turn then to the propriety of the district court s dismissal of Mr. Heaton s five remaining claims. We review a district court s dismissal under Federal Rule of appeal is taken. However, a technical defect such as Mr. Heaton s improper designation of the Supreme Court should not defeat appellate jurisdiction where the intention to appeal to a certain court of appeals may be reasonably inferred from the notice, and where the defect has not materially misled the appellee. United States v. Treto-Haro, 287 F.3d 1000, 1002 n.1 (10th Cir. 2002) (quoting Graves v. Gen. Ins. Corp., 381 F.2d 517, 519 (10th Cir. 1967)). In Graves, the notice of appeal designated the New Mexico Supreme Court rather than this court as the court to which the appeal was taken, but we took jurisdiction because the notice correctly identified the federal district court from which the appeal was taken; this court was the only court to which the appeal could have been taken; and the appellees were not misled by the error. 381 F.2d at Similarly, here, we can reasonably infer Mr. Heaton s intent to appeal to this court because his notice of appeal correctly identifies the United States District Court for the District of Utah as the court from which the appeal was taken; the notice of appeal was filed in that court; and appellees understood that an appeal from that court would lie only in this court. Accordingly, the defect in Mr. Heaton s pro se notice of appeal does not defeat our appellate jurisdiction

5 Appellate Case: Document: Date Filed: 09/19/2012 Page: 5 Civil Procedure 12(b)(6) de novo. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). [T]o withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face. Id. (internal quotation marks omitted). It is not enough 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. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (internal quotation marks omitted). The district court first dismissed Mr. Heaton s request to quiet title in his name because he defaulted on his loan and merely sought to attack defendants interest in the property rather than prevail on his own. See Gillmor v. Blue Ledge Corp., 217 P.3d 723, 728 (Utah Ct. App. 2009) ( To succeed in an action to quiet title to real estate, a party must prevail on the strength of his own claim to title and not on the weakness of a defendant s title or even its total lack of title. (internal quotation marks omitted)). Second, the court denied a declaratory judgment establishing that the securitization process severed the note from the deed of trust, thereby preventing defendants from foreclosing, because Utah courts had already rejected that theory. See Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 263 P.3d 397, (Utah Ct. App.), cert. denied, 268 P.3d 192 (Utah 2011) (rejecting split-note theory premised on false assertion that defendant Mortgage Electronic Registration Systems, Inc. s role in the securitization process divested - 5 -

6 Appellate Case: Document: Date Filed: 09/19/2012 Page: 6 defendants of their authority to foreclose by severing the note from its security). Third, the court dismissed Mr. Heaton s slander-of-title claim, which alleged that defendants falsified foreclosure documents, because the claim was predicated upon conclusory allegations with no supporting factual averments. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ( Rule 8... demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. ). Fourth, the court rejected Mr. Heaton s charge that defendant American Mortgage Servicing, Inc., breached the covenant of good faith and fair dealing by refusing to process a loan modification, reasoning that his claim was not predicated on some breach of the extant mortgage contract but instead upon his attempt to unilaterally impose new obligations on defendants based on their refusal to modify the mortgage contract. See PDQ Lube Ctr., Inc. v. Huber, 949 P.2d 792, 798 (Utah Ct. App. 1997) ( [The] covenant cannot be construed to establish new, independent rights or duties not agreed upon by the parties. (internal quotation marks omitted)). Finally, the district court recognized that Mr. Heaton fatally failed to plead his fraud and negligent misrepresentation claims with particularity as required by Fed. R. Civ. P. 9(b). See Kuhre v. Goodfellow, 69 P.3d 286, (Utah 2003). We perceive no error in the district court s analysis. The court accurately evaluated Mr. Heaton s complaint and concisely explained why it failed to state a plausible claim for relief. We see no reason to recreate the district court s decision, and therefore, having review the parties appellate materials, the record on appeal, - 6 -

7 Appellate Case: Document: Date Filed: 09/19/2012 Page: 7 and the relevant legal authority, we AFFIRM the district court s judgment for substantially the same reasons stated by the court in its order dated August 24, Entered for the Court John C. Porfilio Senior Circuit Judge - 7 -

8 Case 2:11-cv TS Document 26 Filed 08/24/11 Page 1 of 11 IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION N. THOMAS HEATON, Plaintiff, MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF S MOTION TO REMAND AND GRANTING DEFENDANTS MOTIONS TO DISMISS vs. AMERICAN BROKERS CONDUIT, et al., Case No. 2:11-CV-531 TS Defendants. This matter is before the Court on Motions to Dismiss filed by Defendants American Home Mortgage Servicing, Inc., Mortgage Electronic Registration Systems, Inc., America s Wholesale Lender, ReconTrust Company N.A., and Bank of America, National Association 1 (collectively, Defendants ). Also before the Court is Plaintiff s Motion to Remand Back to the 2 Fifth District Court. For the reasons discussed below, the Court will deny Plaintiff s Motion to Remand and grant Defendants Motions to Dismiss. 1 Docket Nos. 7 & Docket No

9 Case 2:11-cv TS Document 26 Filed 08/24/11 Page 2 of 11 I. BACKGROUND On April 24, 2006, Plaintiff Heaton obtained a refinanced mortgage loan in the amount of $682,500. The loan was secured by a Deed of Trust recorded against real property located in St. George, Utah (the Property ). On September 1, 2009, Plaintiff entered into a loan modification which provided him with new payment terms for the loan. Notwithstanding this modification, Plaintiff defaulted on the terms of the loan and the modification. In Plaintiff s Complaint, Plaintiff seeks another loan modification with a principal balance of $332,000 and a fixed interest rate of two percent for thirty years or title to the property in fee simple absolute. A. COMPLETE DIVERSITY II. MOTION TO REMAND Plaintiff asserts that jurisdiction before this Court is improper because Defendant Backman Title Services f/k/a Sundance Title ( Backman ) is a Utah citizen and moves the Court to remand this case to state court. Defendants assert that jurisdiction is proper before this Court because Backman is a only a nominal party and was fraudulently named as a defendant to avoid diversity jurisdiction. Generally, because federal courts are courts of limited jurisdiction, there is a 3 presumption against the existence of federal jurisdiction. Defendants, as the parties invoking the jurisdiction of the Court ha[ve] the burden of pleading and proving the existence of 3 Purdy v. Starko, 2010 WL , at *2 (D. Utah Aug. 4, 2010) (citing City of Lawton, Okla. v. Chapman, 257 F.2d 601 (10th Cir. 1958)). 2

10 Case 2:11-cv TS Document 26 Filed 08/24/11 Page 3 of 11 4 jurisdiction. Defendants may remove any civil action brought in a state court of which the 5 district courts of the United States have original jurisdiction. Federal courts have diversity jurisdiction over all civil actions where the amount in controversy exceeds $75,000 and the 6 action is between citizens of different states. It has long been the rule that to satisfy the diversity of citizenship requirement of 28 U.S.C. 1332(a)(1) the plaintiffs and defendants must 7 be completely diverse: No plaintiff can be a citizen of the same state as any defendant. Plaintiff asserts that Backman is a citizen of the State of Utah. Defendants argue, however, that Plaintiff s inclusion of Backman in this matter constitutes a fraudulent joinder. First, Defendants contend that Plaintiff improperly conflates Backman with Sundance Title Insurance Agency, Inc ( Sundance ). Backman disclaims that it is a successor of Sundance or that Backman performed any closing services on behalf of Plaintiff. Second, Defendant asserts that Sundance, an expired corporation, only acted as a settlement agent for Plaintiff s refinance transaction at issue in this matter. As settlement agent, Sundance has no independent interest in the Property and played no part in the alleged wrongful actions of the other Defendants. Finally, Defendants note that Plaintiff has failed to allege any specific claim against Backman in his Complaint. 4 Wilshire Oil. Co. of Tex.v. Riffe, 409 F.2d 1277, 1282 (10th Cir. 1969) U.S.C. 1441(a) U.S.C Salt Lake Tribune Pub. Co., LLC v. AT&T Corp., 320 F.3d 1081, (10th Cir. 2003) (citing Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, (1978)). 3

11 Case 2:11-cv TS Document 26 Filed 08/24/11 Page 4 of 11 In Navarro Savings Association v. Lee, the United States Supreme Court held that the citizens upon whose diversity a plaintiff grounds jurisdiction must be real and substantial 8 parties to the controversy. For this reason, a federal court must disregard nominal or formal 9 parties and rest jurisdiction only upon the citizenship of real parties to the controversy. Fraudulent joinder is a judicially created doctrine that provides an exception to the 10 requirement of complete diversity. The doctrine of fraudulent joinder provides that joinder of a resident defendant against whom no cause of action is pled, or against whom there is in fact no 11 cause of action, will not defeat removal. The Tenth Circuit recently considered the doctrine of 12 fraudulent joinder in the case of Montano v. Allstate Indeminity. The court held that: The case law places a heavy burden on the party asserting fraudulent joinder. A representative example states: To prove their allegation of fraudulent joinder [the removing parties] must demonstrate that there is no possibility that [plaintiff] would be able to establish a cause of action against the joined party in state court. In evaluating fraudulent joinder claims, we must initially resolve all disputed questions of fact and all ambiguities in the controlling law in favor of the nonremoving party. We are then to determine whether that party has any possibility 13 of recovery against the party whose joinder is questioned. 8 Navarro Sav. Ass n v. Lee, 446 U.S. 458, 460 (1980) (citing McNutt, for Use of Leggett v. Bland, 43 U.S. 9, 15 (1844)). 9 Id. 10 Purdy, 2010 WL , at *2 (quoting Kan. State Univ. v. Prince, 673 F. Supp. 2d 1297, 1294 (D. Kan. 2009)). 11 Roe v. Gen. Life Ins. Co. & Phillips Petroleum Co., 712 F.2d 450, 452 (10th Cir. 1983) (citing Dodd v. Fawcett Publ ns, Inc., 329 F.2d 82, 85 (10th Cir. 1964)) F.3d 1278 (10th Cir. 2000) (unpublished). 13 Id. at *1 (quoting Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir. 2000)). 4

12 Case 2:11-cv TS Document 26 Filed 08/24/11 Page 5 of 11 Thus, to prove fraudulent joinder, Defendants must demonstrate that Plaintiff can prove no valid cause of action against Backman. Plaintiff s Complaint alleges no specific cause of action against Backman. In fact, Plaintiff has even yet to serve Backman in this matter. As Plaintiff has brought no specific claim against Backman, the Court finds that Backman was fraudulently joined and, therefore, complete diversity exists among the parties. B. PLAINTIFF S REMAINING CONTENTIONS Plaintiff further contends that removal was improper because not all of the Defendants joined in removal and the amount in controversy does not exceed $75,000. Both of these allegations are contradicted by the record. As to consent, the record clearly demonstrates that all parties with an interest in the Property consented to the removal. As to the amount in controversy, Plaintiff s requested relief undisputedly exceeds a value of $75,000. This conclusion is not changed merely because Plaintiff seeks his relief in equity. If the Court were to grant Plaintiff s requested relief for a loan modification, his debt would be reduced by $400,000 or more. And if the Court were to grant Plaintiff s requested relief for fee simple title to the Property, Plaintiff would receive title to property valued well in excess of $75,000. Because complete diversity exists, all required parties consented to removal, and the amount in controversy exceeds $75,000, the Court finds removal was proper and will deny Plaintiff s request for remand. 5

13 Case 2:11-cv TS Document 26 Filed 08/24/11 Page 6 of 11 A. LEGAL STANDARD II. MOTION TO DISMISS In considering a motion to dismiss under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from conclusory allegations, are accepted as true and viewed in the 14 light most favorable to Plaintiff as the nonmoving party. Plaintiffs must provide enough facts 15 to state a claim to relief that is plausible on its face. All well-pleaded factual allegations in the amended complaint are accepted as true and viewed in the light most favorable to the nonmoving 16 party. But, the court need not accept... conclusory allegations without supporting factual 17 averments. The court s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff s complaint alone is 18 legally sufficient to state a claim for which relief may be granted. In considering the adequacy of a plaintiff s allegations in a complaint subject to a motion to dismiss, a district court not only considers the complaint, but also documents incorporated 19 into the complaint by reference, and matters of which a court may take judicial notice. Thus, 1997). 14 GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). 16 GFF Corp., 130 F.3d at S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 18 Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). 19 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citing 5B WRIGHT & MILLER 1357 (3d ed and Supp. 2007)). 6

14 Case 2:11-cv TS Document 26 Filed 08/24/11 Page 7 of 11 notwithstanding the usual rule that a court should consider no evidence beyond the pleadings on a Rule 12(b)(6) motion to dismiss, [a] district court may consider documents referred to in the complaint if the documents are central to the plaintiff s claim and the parties do not dispute the documents authenticity. 20 B. QUIET TITLE Plaintiff requests the Court quiet title to the Property in his favor. To succeed in an action to quiet title to real estate, a party must prevail on the strength of his own claim to title and 21 not on the weakness of a defendant s title or even its total lack of title. Plaintiff s quiet title claim is based on allegation that the Defendants lack any interest in the property and the true 22 owner of the loan is unknown. This is simply an attack on the strength of Defendants title 23 and fails to account for the fact that Plaintiff is presently in default under the loan. Plaintiff s quiet title claim, therefore, fails as a matter of law and will be dismissed. 20 Alvarado v. KOBTV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)). 21 Gillmor v. Blue Ledge Corp., 217 P.3d 723, 728 (Utah Ct. App. 2009) (internal quotation marks and citation omitted). 22 Docket No. 2, Ex. 3, See Marty v. MERS, 2010 WL , at *8 (D. Utah Oct. 19, 2010) (dismissing quiet title claim because Plaintiff is still in default on the loan and it is this that clouds any title owned by Plaintiff ). 7

15 Case 2:11-cv TS Document 26 Filed 08/24/11 Page 8 of 11 C. DECLARATORY JUDGMENT Plaintiff seeks declaratory judgment that MERS does not have a right to assign the beneficial interest in the loan and that any subsequent holder, therefore, lacks standing and authority to foreclose. This Court, however, has repeatedly such arguments and Plaintiff provides no reason for the Court to reconsider this claim. Additionally, the Utah Court of 24 Appeals has recently reached the same conclusion on this type of claim. Based on this precedent, the Court rejects Plaintiff s arguments. D. SLANDER OF TITLE To prove slander of title, a claimant must prove that (1) there was a publication of a slanderous statement disparaging claimant's title, (2) the statement was false, (3) the statement 25 was made with malice, and (4) the statement caused actual or special damages. In support of this claim, Plaintiff simply recites numerous conclusory allegations with no supporting factual averments and largely focuses on wide-sweeping denunciations of MERS s role in the foreclosure process. Such conclusory allegations with no supporting factual averments fail to state a claim upon which relief can be granted. The Court will, therefore, dismiss Plaintiff s slander of title claim. 24 Commonwealth Property Advocates, LLC v. Mortgage Electronic Registration System, Inc., P.3d, 2011 WL , at *4-5 (July 14, 2011). 25 First Sec. Bank, N.A. v. Banberry Crossing, 780 P.2d (Utah 1989). 8

16 Case 2:11-cv TS Document 26 Filed 08/24/11 Page 9 of 11 E. BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING Plaintiff s fourth cause of action alleges that Defendant American Mortgage Servicing, Inc. breached the duty of good faith and fair dealing. Specifically, Plaintiff alleges that Defendant breached the duty by intentionally and systematically delaying the loan modification 26 process. The Court finds that this claim fails as a matter of law. The covenant of good faith and fair dealing, which inheres in every contractual relationship, cannot be construed to establish new, independent rights or duties not agreed upon 27 by the parties. Plaintiffs fourth cause of action seeks to impose new duties upon Defendant and grant Plaintiff new rights relating to the modification of the loan s original terms. The covenant of good faith and fair dealing cannot be relied on to create a contract different than the one agreed to by the parties. Plaintiff s fourth cause of action, therefore, fails as a matter of law and must be dismissed. F. VIOLATION OF THE CONSUMER SALES PRACTICES ACT Without citation to any specific provision of the Consumer Sales Practice Act ( CSPA ), Plaintiff alleges that Defendant American Home Mortgage breached [its] duty by engaging in unfair and deceptive acts in handling his request for a loan modification and in servicing his loan. The Court finds these allegations insufficient to survive a motion to dismiss. Plaintiff offers only a list of conclusory allegations and fails to identify which specific provisions of the CSPA he claims Defendant has violated. In fact, the only time the CSPA is mentioned in the Complaint is 26 Docket No. 2, Ex. 3, PDQ Lube Center, Inc. v. Huber, 949 P.2d 792, 798 (Utah Ct. App. 1997). 9

17 Case 2:11-cv TS Document 26 Filed 08/24/11 Page 10 of 11 in the caption of the cause of action. These broad and conclusory statements fail to state a claim upon which relief can be granted and will be dismissed. G. FRAUD AND NEGLIGENT MISREPRESENTATION CLAIMS To allege a claim sounding in fraud, a party must allege: (1) that a representation was made (2) concerning a presently existing material fact (3) which was false and (4) which the representor either (a) knew to be false or (b) made recklessly, knowing that there was insufficient knowledge upon which to base such a representation, (5) for the purpose of inducing the other party to act upon it and (6) that the other party, acting reasonably and in ignorance of its falsity, (7) did in fact rely upon it (8) and was thereby induced to act (9) to that party's injury and damage. 28 Similarly, to prove negligent misrepresentation several elements must be shown: (1) the plaintiffs reasonably relied on the defendant's representation, (2) the representation constitutes a careless or negligent misrepresentation of a material fact, (3) the defendant had a pecuniary interest in the transaction, (4) the defendant was in a superior position to know the material facts, and (5) the defendant should have reasonably foreseen that the injured party was likely to 29 rely upon the misrepresentation. Both negligent misrepresentation and general fraud claims must meet the heightened 30 pleading requirements of Fed.R.Civ.P. 9(b). Rule 9(b) requires a party to state with 28 Armed Forces Ins. Exch. v. Harrison, 70 P.3d 35, 40 (Utah 2003). 29 Mitchell v. Smith, 2010 WL , at *8 (D. Utah Dec. 14, 2010) (quoting Price- Orem Inc. Co. v. Rollins, Brown & Gunnel, Inc., 713 P.2d 55, 59 (Utah 1986)). 30 See Coroles v. Sabey, 79 P.3d 974 (Utah Ct. App. 2003); Atkinson v. IHC Hosps. Inc., 798 P.2d 733, 737 (Utah 1990). 10

18 Case 2:11-cv TS Document 26 Filed 08/24/11 Page 11 of particularity the circumstances constituting fraud and this particularity requirement is not met by a mere recitation of the elements of fraud or by conclusory allegations that are not supported by relevant facts. 32 The allegations in Plaintiff s Complaint fail to meet the particularity requirement. Plaintiff fails to make any distinction among the various Defendants and only offers conclusory allegations that Defendants made fraudulent statements during the course of the parties dealings. These allegation are insufficient under Rule 9 and the Court will, therefore, dismiss Plaintiff s fraud and negligent misrepresentation claims. It is therefore IV. CONCLUSION ORDERED that Plaintiff s Motion to Remand to State Court Fifth District (Docket No. 11) is DENIED. It is further ORDERED that Defendants Motions to Dismiss (Docket Nos. 7 & 16) are GRANTED. Plaintiff s Complaint is dismissed with prejudice. The Clerk of the Court is directed to close this case forthwith. DATED August 24, BY THE COURT: TED STEWART United States District Judge 31 Fed.R.Civ.P. 9(b). 32 See Hoverman v. CitiMortgage, 2011 WL , at *5 (D. Utah Aug. 4, 2011). 11