Osborn v. Brown, 2:12-cv-00775

Osborns fell behind on mortgage and sought loan modification from CC Brown for foreclosure defense.
Osborns paid CC Brown a fee for services; claim CC Brown did not perform promised work.
Osborns allege CC Brown lied, sent form letters, misled about progress, and failed to modify loan.
Osborns implicate McCall and Gettel as controlling/overseeing CC Brown’s activities.
Court granted McCall and Gettel’s Rule 12(c) motion; claims against them dismissed without prejudice.
Osborns may amend with a proposed amended complaint by May 1, 2013; failure results in prejudice dismissal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Rule 8(a) sufficiency and plausibility of complaint	Osborns provided facts showing a plausible scheme	Complaint lacks sufficient facts for plausibility	Rule 8 plausibility not met; dismissed for lack of plausibility
Rule 9(b) particularity for fraud against McCall/Gettel	Details against McCall/Gettel implied by leadership roles	No specific who/what/when/where/how for McCall/Gettel	Fraud allegations insufficiently particular under Rule 9(b)
Dismissal of claims against McCall/Gettel without prejudice	Amendment should be allowed to cure deficiencies	Judgment on pleadings appropriate; prejudice if not amended	Dismissal without prejudice; amendment opportunity granted

United States ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163 (10th Cir. 2010) (Rule 9(b) requires specifics of the fraud, including who, what, when, where, how)
Khalik v. United Air Lines, Inc., 671 F.3d 1188 (10th Cir. 2012) (Rule 8 pleading requires plausibility after Iqbal/Twombly)
Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163 (10th Cir. 2010) (illustrates Rule 9(b) sufficiency)
United States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849 (7th Cir. 2009) (details necessary to plead fraud under Rule 9(b))
Koch v. Koch Industries, Inc., 203 F.3d 1202 (10th Cir. 2000) (Rule 9(b) context and particularity guidance)