MEHTA v. WELLS FARGO BANK, N.A. (S.D.Cal. 8-26-2010)

issue of substantial change of position, the failure to address the other elements of promissory estoppel should not be read as expressing an opinion on their presence or absence.

As to Defendant First American, Plaintiff cannot state a claim. As alleged in the FAC, this claim fails against First American at the first element: First American never made Plaintiff a promise. With this element there can be no promissory estoppel. Of course as Plaintiff freely admits, this cause of action is "aimed primarily at Defendant Wells Fargo." (Opp. to First Am.'s MTD at 10.) His only justifications for this claim are (1) that First American is "an indispensable party" and "must be included [in this suit] to set aside the wrongful foreclosure sale," and (2) that "a trustee's or beneficiary's fraudulent conduct during foreclosure proceedings can give rise to a tort action." ( Id. at 10-11.) The first is not a reason to allow Plaintiff to maintain an cause of action that does not lie against First American and the second, even if true, does not excuse the requirement that all elements of this cause of action be met.

As such Plaintiff has not established a claim for promissory estoppel and the twelfth cause of action must be DISMISSED. With respect to First American, this claim is DISMISSED WITH PREJUDICE and as to Wells Fargo DISMISSED WITHOUT PREJUDICE. Further, since it is possible that further amendment could correct the pleading deficiencies as against Wells Fargo. Therefore, the Court allows Plaintiff LEAVE TO AMEND this claim with respect to the reliance issue on the promissory estoppel claim as against Wells Fargo only.

E. Fraud, Intentional Misrepresentation and Negligent Misrepresentation Claims

Plaintiff's third, sixth, and eighth causes of action set forth claims for fraud, intentional misrepresentation, and negligent misrepresentation. The sixth and eighth target both Defendants while the third is against Wells Fargo only. All three of these claims are fraud claims making the same factual allegations and governed by essentially the same standard. See Alliance MortgageCo. v. Rothwell, 900 P.2d 601, 608 n. 4 (Cal. 1995). Specifically, they are based on Plaintiff's claim that Wells Fargo falsely told Plaintiff that the January 5, 2010 foreclosure sale had been, or was going to be, postponed. ( See FAC ¶ 80-82.)

"The elements of fraud, which gives rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or `scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." Small v. Frits Cos., Inc., 65 P.3d 1255, 1258 (Cal. 2003) (quoting Lazar v. Superior Court, 909 P.2d 981, 984 (Cal. 1996)). Intentional misrepresentation has the same elements, Alliance Mortgage, 900 P.2d at 608, while negligent misrepresentation replaces the scienter requirement with a requirement that the defendant have "no reasonable ground" for believing the representation to be true. Small, 65 P.3d at 1258.

Since these are fraud claims Federal Rule of Civil Procedure 9(b) sets the bar for Plaintiff's pleadings. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102-03 (9th Cir. 2003). Rule 9(b) states that "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." These allegations must "be `specific enough to give defendants notice of the particular misconduct . . . so that they can defend against the charge and not just deny that they have done anything wrong.' Averments of fraud must be accompanied by `the who, what, when, where, and how' of the misconduct charged. `[A] plaintiff must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false.'" Vess, 317 F.3d at 1106 (citations omitted).

As with the promissory estoppel claim, Plaintiff does not state a claim against First American because there are no allegations that it made any misrepresentation to Plaintiff. This means that Plaintiff cannot recover on any of these claims. And the other justifications discussed in section II(C), supra, again do not allow these claims to remain against First American.

The Court finds that the same is true with respect to Defendant Wells Fargo. Wells Fargo argues that these claims "are based on the same factual allegations underlying [Plaintiff's] breach of contract claim and are therefore an improper attempt to obtain punitive damages for a contract dispute." (Memo. ISO Motion at 11 (citation omitted).) Certainly Wells Fargo is correct that this is related to Plaintiff's breach of contract cause of action and that in a breach of contract action punitive damages are impermissible. See Cates Constr., Inc. v. Talbot Partners, 21 Cal. 4th 28, 61 (1999). However, "conduct amounting to a breach of contract becomes tortious . . . when it also violates a duty independent of the contract arising from principles of tort law." Erlich v. Menezes, 981 P.2d 978, 983 (Cal. 1999). One of those independent tort duties is "where the contract was fraudulently induced." Id. at 552 (citing Las Palmas Assocs. v. Las Palmas Ctr. Assocs., 1 Cal. Rptr. 2d 301, 310-11 (Cal. Ct. App. 1991)); see also Glendale Fed. Sav Loan Ass'n v. Marina View Heights Dev. Co., 135 Cal. Rptr. 802, 821-22 (Cal. Ct. App. 1977). Thus, Plaintiff's fraud claim is not per se impermissible simply because it relates to his breach of contract allegations and this argument may be rejected.

Wells Fargo also claims that this cause of action is insufficiently pled. First, according to Defendant, Plaintiff's reliance on any oral statement that the foreclosure sale would be postponed was not reasonable as a matter of law. (Memo. ISO Motion at 11.) Second, Wells Fargo believes that these claims are not pled with the particularity required by Federal Rule of Civil Procedure 9(b). ( Id. at 11.) Specifically, it argues that Plaintiff "does not allege facts to support his allegation that anyone at Wells Fargo intended to defraud him." ( Id. at 12.) Moreover, the FAC lacks "facts sufficient to show that the Wells Fargo with whom [Plaintiff] (or his attorney) spoke had the authority to postpone the foreclosure." ( Id.) Similarly, Wells Fargo thinks Plaintiff has not pled reliance on or damages caused by the alleged misrepresentation. ( Id. at 12-13.) Finally, Defendant argues that the allegations of reliance in this case are speculative at best because Plaintiff only states that he would

have "`sought other options.'" ( Id. at 13 (quoting FAC ¶ 100).)

The Court agrees with Defendants that Plaintiff has not sufficiently pled these claims to survive Rule 9(b). However, some of Wells Fargo's arguments on this point are simply incorrect. For example, the Court cannot agree that reliance on an oral statement regarding foreclosure postponement was not reasonable as a matter of law. The cases Defendant cites do not so hold, but some instead deal with the breach of contract issue, see, e.g., Nguyen v. Calhoun, 129 Cal. Rptr. 2d 436 (Cal. Ct. App. 2003), while others explain that no fraud occurred based on factual and evidentiary determinations by the court. See, e.g., Crofoot v. Tarman, 305 P.2d 56 (Cal. Ct. App. 1957). This is, of course, not to say that Plaintiff's reliance was reasonable, but rather merely a finding that the issue of reasonableness is for a later date.

Similarly, the issue of Wells Fargo's employee's authority to postpone the foreclosure sale is not determinative on this claim. This is not a question of contract, and Defendant has not shown that an employee without authority cannot defraud a borrower by making representations outside of the scope of his employment. Instead this issue plays into the considerations required to determine whether Plaintiff reasonably relied on the alleged statement and, as previously noted, today is not the day to resolve that question.

Nonetheless, the Court must find that these three claims are inadequate because Plaintiff has not pled sufficient facts to make plausible that he relied on Wells Fargo's misrepresentation or that he was damaged by those misrepresentations. As stated above, the Court cannot say that the FAC contains factual allegations showing Plaintiff's reliance on Wells Fargo's alleged misrepresentation. Specifically, the documentation submitted was not clearly done in reliance on the alleged promise and Plaintiff has not specifically alleged any realistic option to prevent foreclosure had he known that the foreclosure sale would proceed.

As to damages, although Plaintiff states in his brief that he "lost over a million dollars in equity," that is not actually alleged in the FAC. (Opp. to Wells Fargo's MTD at 14.) Nor is it clear how, exactly, that equity was "lost." Further, it is not apparent how that loss was "caused" by the misrepresentation since Plaintiff has not suggested exactly what he could have done to stop the foreclosure sale.

Thus, since Plaintiff has not stated a claim against either Defendant, these causes of action must be DISMISSED. However, the Court will grant Plaintiff LEAVE TO AMEND these claims as against Wells Fargo. F. "One Action Rule" Claim

Plaintiff's eighth cause of action alleges that both Defendants violated California Code of Civil Procedure § 726, known as the "One Action Rule," by "attempt[ing] to satisfy a debt secured by real property by attaching property other than the secured real property." (FAC ¶ 106). Specifically, Wells Fargo applied "Plaintiff's tender of $23,441.39 . . . to the funds demanded in the [Notice of Default]." ( Id. ¶ 105.) Plaintiff paid this amount as part of a forbearance agreement, and effectively is arguing that any such agreement would be barred under section 726. ( See Opp. to Wells Fargo's MTD at 19-20.)

Section 726(a) provides "There can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property . . ., which action shall be in accordance with the provisions of this chapter." The California Supreme Court has held that the "general operation [of this section] has long been clear," allowing a secured creditor to "bring only one lawsuit to enforce its security interest and collect its debt." Sec. Pac. Nat'l Bank v. Wozab, 51 Cal. 3d 991, 997 (1990). This section also embodies a "security-first" rule, "requir[ing] a secured creditor to proceed against the security before enforcing the underlying debt." Id. at 999.

This statutory provision is clearly inapplicable in this case. First, the FAC does not plead facts indicating that First American is a secured creditor of Plaintiff. On the contrary, Plaintiff Pleads that "Defendant FIRST AMERICAN . . . was acting as the agent or trustee for [Wells Fargo] with regard to the Notice of Default . . . and Notice of Trustee Sale." (FAC ¶ 4.) As such, this provision does not apply as against First American.

Second, with respect to Defendant Wells Fargo, Plaintiff's allegations indicate that he voluntarily sent Wells Fargo the money at issue to be applied against his debt pursuant to a forbearance agreement. (FAC ¶¶ 21-22; FAC, Ex. D.) And despite Plaintiff's arguments, the security-first rule does not prohibit agreements between a lender and borrower that attempt to prevent foreclosure on the security interest. Instead, this rule requires the sale of the secured property before the lender pursues the debtor personally for any further deficiency. See, e.g., Walker v. Cmty. Bank, 10 Cal. 3d 729, 736 (1974) ("the clear purpose of section 726 . . . requir[es] a secured creditor to exhaust all security first"). An example of this is Security Pacific National Bank v. Wozab where the Plaintiff took a setoff against the subject loans from the Defendants' demand account. This account apparently was entirely disassociated from the loan other than the fact that the account holders had personally guaranteed the loan. That court "reaffirm[ed] the long-standing rule that under section 726(a) a bank is not allowed to take a unilateral setoff of funds in a depositor's demand account against a debt secured by the depositor's interest in real property." Sec. Pac, 51 Cal. 3d at 1000.

In this case, no set-off occurred and Wells Fargo did not pursue the Plaintiff's assets prior to foreclosure. Instead, the parties agreed to a forbearance agreement which required the Plaintiff to make certain payments. He made those payments but failed to fulfill his obligations regarding another aspect of the agreement. (FAC ¶ 26.) This was not a set-off or other attempt to pursue Plaintiff personally prior to foreclosure, but was, as the FAC acknowledges, a joint agreement to stave off foreclosure. As such, application of the one-action or security-first rules is improper and no amendment can cure the deficiency. Therefore, the eighth cause of action is DISMISSED WITH PREJUDICE. G. Intentional and Negligent Infliction of Emotional Distress Claims

The tenth and eleventh causes of action allege that Defendant intentionally and negligently inflicted emotional distress on Plaintiff. ( See FAC ¶¶ 117-124.) Both claims generically allege that unspecified conduct caused Plaintiff severe emotional distress and that Defendants acted either intentionally or negligently in that conduct. ( Id.)

A claim for intentional infliction of emotional distress requires that the plaintiff allege: "(i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress." Nally v. Grace Cmty. Church, 763 P.2d 948, 961 (Cal. 1988). Conduct is outrageous when it is "`so extreme as to exceed all bounds of that usually tolerated in a civilized community.'" Id. (quoting Davidson v. City of Westminster, 649 P.2d 894, 901 (Cal. 1982)). "Insults, indignities, annoyances, petty oppressions or other trivialities will not suffice. The conduct must be such that it would cause an average member of the community to immediately react in outrage." Gomon v. TRW, Inc., 34 Cal. Rptr. 256, 264 (Cal. Ct. App. 1994).

Negligent infliction of emotional distress, on the other hand, "is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply." Huggins v. Longs Drug Stores Cal., Inc., 862 P.2d 148, 151 (Cal. 1993). The relevant "duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship." Potter v. Firestone Tire Rubber Co., 863 P.2d 795, 807 (Cal. 1993) (citing Marlene F. v. Affiliated Psychiatric Med. Clinic, 770 P.2d 278, 282 (1989)). "The existence of a duty is a question of law." Huggins, 862 P.2d at 151 (citing Marlene F., 770 P.2d at 281). However, "there is no duty to avoid negligently causing emotional distress to another, and . . . damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff." Potter, 863 P.2d at 807 (citing Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993)); see also id. at 807-08 ("[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty."). However, even when the defendant breaches some other duty, that "breach of the duty must[, with rare exceptions,] threaten physical injury, not simply damage to property or financial interests." Id. at 808.

Wells Fargo argues that "Plaintiff has not alleged any facts against Wells Fargo to support a conclusion that the Bank did anything with any ill will or with the specific intent to cause Plaintiff's emotional distress." (Wells Fargo's MTD at 19.) Nor does Wells Fargo think that Plaintiff has pled any facts demonstrating outrageous conduct. ( Id.) According to Defendant, it cannot be liable for "pursu[ing] what it believed to be its legal rights (including its right to foreclosure)." ( Id.)

As to the negligent infliction of emotional distress claim, Wells Fargo argues that Plaintiff cannot state a claim because it, as a financial institution, owes no duty of care to Plaintiff as a borrower. (Wells Fargo's MTD at 19.) Since Plaintiff has not alleged that Wells Fargo acted beyond its role as a lender he allegedly cannot establish a duty which Wells Fargo breached. ( Id. at 20.)

First American simply argues against both claims that Plaintiff has alleged no "outrageous" conduct on its part, as all allegations relate to Wells Fargo's conduct. (First Am.'s MTD at 13.)

The Court finds that both of these claims are insufficiently pled. First, there is no suggestion that either Wells Fargo or First American owed Plaintiff a duty sufficient to support his negligent infliction of emotional distress claim. Certainly the parties had no special relationship where Plaintiff's emotional condition was an object. Potter 863 P.2d at 807-08. Further, there is no suggestion that Plaintiff was threatened with physical injury or that this case falls within one of the exceptions. Finally, Plaintiff does not specifically argue in opposition to the dismissal of his negligent infliction claim. As such, the Court finds that the eleventh cause of action must be DISMISSED WITHOUT LEAVE TO AMEND.

Next, Plaintiff's intentional infliction of emotional distress claim lacks sufficient allegations to satisfy the elements of this tort. First, it is not clear that either Wells Fargo's behavior or First American's was outrageous in the sense that it was "`so extreme as to exceed all bounds of that usually tolerated in a civilized community.'" Nally, 763 P.2d at 961 (quoting Davidson, 649 P.2d at 901). Plaintiff was in default on his loan, Wells Fargo had the legal right to foreclose, and First American had the right to complete the foreclosure sale. The fact that one of Defendant Wells Fargo's employees allegedly stated that the sale would not occur but the house was sold anyway is not outrageous as that word is used in this context. Id. Second, Plaintiff has not alleged facts that would indicate that Wells Fargo intended to cause, or disregarded the possibility of causing, emotional distress. Third, the connection between Defendant's action and the emotional distress is inadequately stated. To the extent that the connection is Plaintiff's loss of property, "[n]o California case has allowed recovery for emotional distress arising solely out of property damage." Erlich, 981 P.2d at 985. Further, although Plaintiff suggests that "pulling his bags off the airplane for his scheduled flight" is a further basis, it is not clear how Defendants' conduct caused Plaintiff to take this action, how Defendants' would have any idea that Plaintiff was getting on a plane that day, or why getting off a flight was an actual cause of Plaintiff's emotional distress. Absent these essential elements, Plaintiff's intentional infliction of emotional distress claim cannot stand.

As to Plaintiff's arguments, the claim that the Defendants were "in a position of power over plaintiff," it is not particularly relevant. (Opp. to Wells Fargo's MTD at 21; Opp. to First Am.'s MTD at 14.) Plaintiff offers no indication that the mortgage itself was unfair or placed Defendants in a position of power. At the time of the foreclosure, the Defendants' supposed "position of power" arose solely from Plaintiff's failure to make the required loan payments. (FAC ¶ 12.) Without that failure to pay and the subsequent default, no foreclosure could have occurred. This is not the type of abuse of a position of power sufficient to support an emotional distress claim.

Similarly, Plaintiff's citation to Crisci v. Sec. Ins. Co. of New Haven, 66 Cal. 2d 425 (1967), is not helpful. Although the California Supreme Court allowed emotional distress damages in that case, it noted that "[r]ecovery of damages for mental suffering in the instant case does not mean that in every case of breach of contract the injured party may recover such damages." Id. at 434. It also noted the importance of the insurance context and the desire to protect against the mental distress which could accompany the loses insured against. Id. Such factors are not present here.

Thus, since Plaintiff has not stated a claim for intentional infliction of emotional distress, the tenth cause of action is DISMISSED WITHOUT PREJUDICE and with LEAVE TO AMEND. H. Injunctive Relief and Declaratory Relief Claims

In Plaintiff's thirteenth cause of action he seeks injunctive relief. (FAC ¶¶ 127-29.) In the fourteenth cause of action he requests declaratory relief. ( Id. ¶¶ 130-33.)

"Injunctive relief, like damages, is a remedy requested by the parties, not a separate cause of action." Cox Commc'n PCS, L.P. v. City of San Marcos, 204 F. Supp. 2d 1272, 1283 (S.D. Cal. 2002). Thus injunctive relief must be tethered to some independent legal duty owed by the defendant to the plaintiff. Martone v. Burgess, 2008 WL 3916022, at *4 (N.D. Cal. 2008).

Plaintiff asks this Court to "construe the thirteenth cause of action as a request [for an injunction] and not as a separate cause of action." (Opp. to Wells Fargo's MTD at 23.) The Court will do so. However, since no claims remain which could serve as the basis for an injunction, this cause of action is DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO AMEND.

Under federal law, a litigant may bring an action pursuant to the Declaratory Judgment Act. 28 U.S.C. § 2201. However, this Act "is an enabling Act, which confers discretion on the courts rather than an absolute right upon the litigant." Pub. Serv. Comm'n of Utah v. Wycoff Co., Inc., 344 U.S. 237, 241 (1952); see also Zemel v. Rusk, 381 U.S. 1, 19 (1965); A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 331 (1961). The Court can exercise this discretion and decline to consider a declaratory judgment claim even where that claim contains a justiciable controversy. United States v. Washington, 759 F.2d 1353, 1356 (9th Cir. 1985) (citing, inter alia, Int'l Harvester Co. v. Deere Co., 623 F.2d 1207, 1217 (7th Cir. 1980)). Even "after a full consideration of the merits, [the court may] exercise its discretion to refuse to grant declaratory relief because the state of the record is inadequate to support the extent of relief sought." Id. (citing Nat'l Automatic Laundry Cleaning Council v. Schultz, 443 F.2d 689, 703 (D.C. Cir. 1971)).

Although the FAC does not specifically state whether Plaintiff seeks declaratory relief under federal or state law, the Court presumes that he intends to invoke federal law because that is the sole subject of his opposition briefing on this issue. ( See Opp. to Wells Fargo's MTD at 22-23.)

Plaintiff suggests that his "request for declaratory relief is not redundant in the face of the other causes of action, and it may be useful in clarifying the legal relations between the parties." (Opp. to Wells Fargo's MTD at 23.) The specific items which Plaintiff believes would be clarified are "the actual status and validity of the loan, Deed of Trust, and Notice of Default, Trustee's Sale Deed and ownership in Plaintiff's Residence." Id.

The Court, however, declines to consider Plaintiff's request at this time. All of the other causes of action are being dismissed and there is no basis for the declaratory judgment action to remain alone. Thus, it is DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO AMEND. I. Quiet Title Claim

The fifth cause of action seeks to quiet title on the subject property. (FAC ¶¶ 92-94.) It states that the Defendants are asserting an adverse interest and that Plaintiff seeks to quiet title as of February 16, 2007. ( Id.)

Quiet title claims may establish title against adverse claims to real property or any interest therein. Cal. Civ. Proc. Code § 760.020. A complaint alleging such a claim must be verified and include (1) a description of the property; (2) the basis for plaintiff's title; (3) the adverse claim or claims to title; (4) the date as of which the determination is sought; and (5) a prayer for determination of plaintiff's title against the adverse claims. Id. § 761.020.

The Court finds that this claim must be DISMISSED because Plaintiff has not alleged that he is able to tender the amount of his indebtedness. California law holds that a plaintiff cannot quiet title in his property against his mortgage lender "without discharging his mortgage debt. The cloud upon his title persists until the debt is paid." Aguilar v. Bocci, 114 Cal. Rptr. 91, 92 (Cal. Ct. App. 1974) (citing Burns v. Hiatt, 87 P. 196, 197 (Cal. 1906)); see also Distor v. US Bank NA, 2009 WL 3429700, at *6 (N.D. Cal. 2009) ("[P]laintifff has no basis to quiet title without first discharging her debt."). In this case, Plaintiff has not alleged either that he has tendered his indebtedness or that he is able to do so. Absent this key offer, the Court must DISMISS this claim WITHOUT PREJUDICE.

Plaintiff's arguments do not change this conclusion. First, the Court has already addressed and rejected Plaintiff's claims regarding the consequences of Wells Fargo's alleged non-compliance with section 2923.5. Even if Defendant failed to comply with that section, Plaintiff's only remedy was a postponement of the foreclosure sale and that only prior to the sale. Mabry, 2010 WL 2180530 at *7 *14. Since the sale has already occurred, there was no defect in the chain of title.

Second, Plaintiff's argument that he should not be required to allege an ability to tender is unconvincing. At the end of the day, if Plaintiff wishes to avoid his loan he is going to have to pay it off in its entirety. Requiring at least an allegation of tender at the outset is reasonable since it would waste both the parties' time and the Court's time should he be unable to pay at the case's conclusion.

Further, although Plaintiff repeated refers to this as an "ambush foreclosure," there are no which indicate that is the case. Plaintiff was long on notice of the date of the foreclosure sale on the property. Moreover it is unclear how Plaintiff was deprived of his ability to tender prior to the sale since there is no allegation that Defendant would not have simply allowed him to immediately pay off his entire debt at any time between the filing of the Notice of Default and the foreclosure sale.

I. California Business and Professions Section 17200 Claim

Finally, Plaintiff's ninth cause of action is for violations of California Business and Professions Code section 17200. As both parties agree, this claim stands and falls with the viability of Plaintiff's other claims. ( See Wells Fargo's MTD at 17-18; Opp. to Wells Fargo's MTD at 20.) Since all of Plaintiff's other claims have been dismissed, this claim is also DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO AMEND.

CONCLUSION

For the reasons stated, Defendant First American's motion to dismiss is GRANTED and Defendant Wells Fargo's motion to dismiss is also GRANTED. Plaintiff's first, second, fourth, seventh and eleventh causes of action are DISMISSED WITH PREJUDICE as to all Defendants. Plaintiff's third, sixth, eighth, and twelfth causes of action are DISMISSED WITH PREJUDICE as to Defendant First American. All remaining claims are DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO AMEND as discussed above.

IT IS SO ORDERED.