Adusei v. Auer et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Oluronke Briana Adusei,
Plaintiff,
v.
Colleen Auer, et al.,
Defendants.
No. CV-25-01722-PHX-SMB
ORDER
The Court now considers (1) Defendant Colleen Auer’s Motion to Dismiss and
Motion to Strike Plaintiff Oluronke Briana Adusei’s Second Amended Complaint (“SAC”)
(Doc. 111), (2) Defendant Arizona College’s Motion to Dismiss and Motion to Strike
Plaintiff’s SAC (Doc. 118), (3) Defendant Bonnett Fairbourn Friedman & Balint, P.C.’s
(“BFFB”) Motion to Strike Certain Counts from Plaintiff’s SAC (Doc. 107), (4) Plaintiff’s
Motion to Compel Scheduling Conference and Open Discovery (Doc. 98), (5) Plaintiff’s
Emergency Motion for Preliminary Injunction (Doc. 110), and (6) Plaintiff’s Motion for
Entry of Default as to Arizona College (Doc. 116).
The Court grants Defendant Colleen Auer’s Motion (Doc. 111) and Arizona
College’s Motion (Doc. 188). Because the Court previously dismissed or struck all claims
from the SAC, the Court denies as moot BFFB’s Motion (Doc 107), Plaintiff’s Motion to
Compel (Doc. 98), Plaintiff’s Motion for Preliminary Injunction (Doc. 110), and Plaintiff’s
Motion for Entry of Default (Doc. 116).
Case 2:25-cv-01722-SMB Document 126 Filed 04/02/26 Page 1 of 5

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I. BACKGROUND
This case arises from Plaintiff’s dismissal from Arizona College’s nursing program
in 2018. (Doc. 103 at 3 ¶ 11.) Plaintiff retained Auer (who BFFP employed at the time)
as counsel to pursue legal action against Arizona College regarding Plaintiff’s dismissal.
(Id. at 3 ¶ 12, 5 ¶ 21.) Plaintiff and Arizona College agreed to a settlement where “Arizona
College agreed to refund educational-related payments to Plaintiff.” (Id. at 3 ¶ 13.)
Arizona College and BFFB each filed a Form 1099 with the IRS to report the settlement
payment. (Id. at 9 ¶ 42.) Plaintiff took issue with the allegedly duplicative filing and
misclassification of the settlement funds and levied a number of claims against Auer,
BFFB, and Arizona College. (Id.)
In its January 20, 2026 order (“January Order”), the Court granted both Arizona
College and BFFB’s motions to dismiss. (Doc. 102 at 1.) The Court dismissed six of
Plaintiff’s claims with prejudice and dismissed Plaintiff’s Legal Malpractice and Breach
of Fiduciary Duty claim without prejudice. The Court granted Plaintiff leave to amend
only her Legal Malpractice and Breach of Fiduciary Duty claim. The very next day
Plaintiff filed her SAC alleging a total of eleven claims against Defendants. (Doc. 103.)
BFFB filed a motion to strike nine of the claims, and Arizona College and Auer each filed
a motion to dismiss and a motion to strike. (Doc. 107, 111, 118.)
II. LEGAL STANDARD
To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet
the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the
claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice
of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). This notice exists if the pleader sets forth “factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id.
Case 2:25-cv-01722-SMB Document 126 Filed 04/02/26 Page 2 of 5

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory
or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss if it contains sufficient factual
matter, which, if accepted as true, states a claim to relief that is “plausible on its face.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal
“probability,” but requires “more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility . . . .’”
Id. (quoting Twombly, 550 U.S. at 557).
In ruling on a Rule 12(b)(6) motion to dismiss, the well-pleaded 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). However, legal conclusions couched as
factual allegations are not given a presumption of truthfulness, and “conclusory allegations
of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto
v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence
outside the pleadings when ruling on a Rule 12(b)(6) motion to dismiss. See Ritchie, 342
F.3d at 907 (9th Cir. 2003). “A court may, however, consider materials—documents
attached to the complaint, documents incorporated by reference in the complaint, or matters
of judicial notice—without converting the motion to dismiss into a motion for summary
judgment.” Id. at 908.
III. DISCUSSION
The Court first addresses the impermissible amendments and then turns to the
claims the Court granted Plaintiff leave to amend in the January Order.
A. Amendments Beyond the Scope of the Court’s Order
The Court only granted Plaintiff leave to amend her legal malpractice and breach of
fiduciary duty claims. Plaintiff chose to instead amend her complaint beyond the scope
allowed by the Court. For example, Plaintiff’s SAC again alleges a 42 U.S.C. § 1981
Case 2:25-cv-01722-SMB Document 126 Filed 04/02/26 Page 3 of 5

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
claim, even though the Court dismissed it with prejudice. The Court will not entertain that
claim again.
Next, Plaintiff added eight new claims: negligent misrepresentation; declaratory and
injunctive relief; IRS harm, hardship, and continuing injury; breach of contract; breach of
implied covenant of good faith and fair dealing; fraudulent concealment; fraud and
intentional misrepresentation; and civil conspiracy. These additional claims are not
permitted because the Court only granted Plaintiff leave to amend her legal malpractice
and breach of fiduciary duty claims. See Gerritsen v. Warner Bros. Ent. Inc., 116 F. Supp.
3d 1104, 1125 (C.D. Cal. 2015) (striking new claims that “exceed[ed] the scope of leave
to amend granted by the court”).
The Court therefore strikes Counts I, II, III, IV, VII, VIII, IX, X and XI from
Plaintiff’s SAC.
B. Counts V and VI: Legal Malpractice/Professional Negligence and Breach of
Fiduciary Duty
Now the Court turns to Plaintiff’s only remaining claims. Plaintiff asserts claims of
legal malpractice and breach of fiduciary duty against Defendants Auer and BFFB. (Doc.
103 at 15-16.) In the January Order, the Court determined that Plaintiff did not plausibly
allege that it was improper for Arizona College and BFFB to file 1099s. (Doc. 102 at 8.)
The Court then dismissed Plaintiff’s legal malpractice and breach of fiduciary duty claims
because she premised them on the filing of the 1099s. The Court granted Plaintiff leave to
amend her legal malpractice and breach of fiduciary duty claims so she could address these
deficiencies. (Id.)
However, despite the Court’s directive, the SAC still predicates the legal
malpractice and breach of fiduciary duties claims on the filing of the 1099s. Plaintiff claims
that Defendants BFFB and Auer failed to properly advise Plaintiff about “the risks
associated with the misclassification of settlement amounts . . . and the harm associated
with both defendants working together in double reporting of two 1099” forms. (Doc. 103
at 15 ¶ 79.) Plaintiff further alleges that “Defendants failed to take reasonable corrective
Case 2:25-cv-01722-SMB Document 126 Filed 04/02/26 Page 4 of 5

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
action to address the misclassification and duplicative reporting of Plaintiff’s settlement
funds through the issuance of two Forms 1099.” (Id. at 16 ¶ 81.) The SAC does not provide
a basis for Plaintiff’s legal malpractice and breach of fiduciary duty claims unrelated to the
1099 forms. Thus, the Court will dismiss Count V and VI with prejudice.
IV. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED granting Auer’s Motion to Dismiss and Motion to
Strike Plaintiff’s SAC (Doc. 111).
IT IS FURTHER ORDERED granting Arizona College’s Motion to Dismiss and
Motion to Strike Plaintiff’s SAC (Doc. 118).
IT IS FURTHER ORDERED dismissing with prejudice Counts V and VI and
striking Counts I, II, III, IV, VII, VIII, IX, X and XI of Plaintiff’s SAC.
IT IS FURTHER ORDERED denying as moot: BFFB’s Motion to Strike Certain
Counts from Plaintiff’s SAC (Doc. 107); Plaintiff’s Motion to Compel Scheduling
Conference and Open Discovery (Doc. 98); Plaintiff’s Emergency Motion for Preliminary
Injunction (Doc. 110); and Plaintiff’s Motion for Entry of Default as to Arizona College
(Doc. 116).
IT IS FURTHER ORDERED that the Clerk of Court enter final judgment in favor
of Defendants and close this case.
Dated this 2nd day of April, 2026.
Case 2:25-cv-01722-SMB Document 126 Filed 04/02/26 Page 5 of 5