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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Gerrie A Cooley, et al., 

Plaintiffs, 

v. 

James E Davison, et al., 

Defendants. 

No. CV-15-08145-PCT-DLR

ORDER 

 Before the Court is Defendant Darleen Davison’s Motion to Dismiss. (Doc. 83.) 

The motion is fully briefed. For the following reasons, Davison’s motion is granted.1

 

BACKGROUND 

 In her First Amended Complaint (FAC), Plaintiff Gerrie Cooley alleges that she 

purchased a mobile home park called Camptown from Defendant the James E. Davidson 

Trust, but that the Trust, through its trustees and beneficiaries, misrepresented and 

omitted material information about Camptown’s condition, revenues, and assets, and 

converted certain Camptown assets. (Doc. 51.) Cooley brings various contract and tort 

claims against the Trust, its trustees, and beneficiaries. Among these Defendants is 

Darlene Davidson, who Cooley claims is an unintended beneficiary of the misdeeds 

alleged. (Id., ¶¶ 5, 140.) As relevant here, Cooley seeks to hold Davidson liable for 

 

1

 Davidson’s request for oral argument is denied because the issues are adequately briefed and oral argument will not aid the Court’s resolution of the motion. LRCiv 7.2(f). 

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breach of contract (Count IV),2 breach of the implied covenant of good faith and fair 

dealing (Count V), and civil conspiracy (Count VIII). Davidson has moved to dismiss 

these claims under Federal Rule of Civil Procedure 12(b)(6). 

LEGAL STANDARD 

When analyzing a complaint for failure to state a claim to relief under Rule 

12(b)(6), the well-pled factual allegations are taken as true and construed in the light 

most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th 

Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the 

assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and therefore are 

insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. 

Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). Nor is the court required to accept as true 

“allegations that contradict matters properly subject to judicial notice,” or that merely are 

“unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State 

Warriors, 266 F.3d 979, 988 (9th Cir. 2001). To avoid dismissal, the complaint must 

plead sufficient facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard “is not akin to a 

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant 

has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). 

“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, 

it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” 

Id. (quoting Twombly, 550 U.S. at 557.) 

DISCUSSION 

Counts IV and V are dismissed because Cooley has not plausibly alleged that 

Davidson was a party to the Camptown purchase contract. Cooley alleges that the 

contract was between her and the Trust. (Doc. 51, ¶¶ 27, 31, 33, 122.) The Escrow 

Instructions attached as an exhibit to the FAC also identify the Trust, represented at that 

 

2

 Davidson’s motion erroneously states that the breach of contract claim is Count 

II in the FAC. (Doc. 83 at 1.) 

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time by James Davidson as trustee, as the seller, and Cooley as the buyer. (Doc. 51-1 at 

5.) Davidson cannot be held liable for breaching a contract to which she is not a party, or 

for breaching the covenant of good faith and fair dealing implied therein.3

 See Kincaid v. 

Wells Fargo Bank, No. CV-10-579-PHX-DGC, 2010 WL 2899058, at *3 (D. Ariz. July 

22, 2010) (“[T]he implied covenant is only breached when one party denies the other a 

benefit of the agreement[.]”). 

Count VIII is dismissed because Cooley has not plausibly alleged that Davidson 

was a party to a civil conspiracy. “[L]iability for civil conspiracy requires that two or 

more individuals agree and thereupon accomplish and underlying tort which the alleged 

conspirators agreed to commit.” Wells Fargo Bank v. Ariz. Laborers, Teamsters & 

Cement Masons Local No. 395 Pension Trust Fund, 38 P.3d 12, 36 (Ariz. 2002) (internal 

quotation and citation omitted). The only tort that Davidson is alleged to have committed 

is conversion. Specifically, Cooley alleges that Davidson “was required to turn over title 

on several mobile homes and has failed and refused to do so. Those assets are the 

property of Camptown, not Mrs. Davidson.” (Doc. 51, ¶ 155.) Although Cooley 

conclusorily alleges that “Defendants conspired and agreed to commit the underlying 

torts alleged herein and accomplished those torts,” the FAC is devoid of factual 

allegations plausibly showing that Davidson agreed with others to convert mobile homes. 

See Iqbal, 556 U.S. at 679 (Courts are “not bound to accept as true a legal conclusion 

couched as a factual allegation[.]”). Indeed, the FAC contains only three factual 

allegations that mention Davidson. The first alleges that Davidson is an Arizona resident, 

the second that she is an unintended beneficiary of the misdeeds alleged, and the third 

that Davidson refused to turn over several mobile homes. (Id., ¶¶ 5, 140, 155.) The 

FAC, therefore, contains no factual allegations permitting the plausible inference that 

 

3

 Cooley argues that Davidson may be held liable for the Trust’s breach because 

she is an unintended beneficiary of the contract. This argument is without merit. Under 

some circumstances, contractual rights may flow to a third party if that party is an intended beneficiary. See Kremen v. Cohen, 337 F.3d 1024, 1029 (9th Cir. 2002). 

Davidson, however, is not seeking to enforce the purchase contract, nor has Cooley alleged that Davidson is an intended beneficiary of it. Rather, Cooley alleges only that Davidson is an unintended beneficiary. 

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Davidson conspired to commit torts against Cooley. Accordingly, 

IT IS ORDERED that Davison’s Motion to Dismiss, (Doc. 83), is GRANTED. 

 Dated this 20th day of October, 2016. 

Douglas L. Rayes 

United States District Judge 

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