United States District Court, D. Nevada
TERRY KERR et al. Plaintiffs,
U.S. BANK, N.A. et al., Defendants.
C. JONES, UNITED STATES DISTRICT JUDGE
case arises out of a residential foreclosure. Pending before
the Court are a motion to dismiss and a motion for default
FACTS AND PROCEDURAL HISTORY
have sued Defendants in this Court in pro se for:
(1) violations of the Bank Holding Companies Act
(“BHCA”); (2) violations of the Racketeer
Influenced Corrupt Organizations Act (“RICO”);
(3) violations of the Servicemembers Civil Relief Act
(“SCRA”); (4) Intentional Infliction of Emotional
Distress (“IIED”); (5) breach of the implied
covenant of good faith and fair dealing; (6) RICO; and (7)
violations of the Truth in Lending Act (“TILA”).
Defendants have move to dismiss, and Plaintiffs have moved
for a default judgment.
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief” in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil
Procedure 12(b)(6) mandates that a court dismiss a cause of
action that fails to state a claim upon which relief can be
granted. A motion to dismiss under Rule 12(b)(6) tests the
complaint's sufficiency. See N. Star Int'l v.
Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.
1983). When considering a motion to dismiss under Rule
12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
1986). The court, however, is not required to accept as true
allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences. See
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001).
formulaic recitation of a cause of action with conclusory
allegations is not sufficient; a plaintiff must plead facts
pertaining to his own case making a violation
“plausible, ” not just “possible.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)
(citing Twombly, 550 U.S. at 556) (“A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”). That is, under the modern interpretation of
Rule 8(a), a plaintiff must not only specify or imply a
cognizable legal theory (Conley review), he must
also allege the facts of his case so that the court can
determine whether he has any basis for relief under the legal
theory he has specified or implied, assuming the facts are as
he alleges (Twombly-Iqbal review). Put differently,
Conley only required a plaintiff to identify a major
premise (a legal theory) and conclude liability therefrom,
but Twombly-Iqbal requires a plaintiff additionally
to allege minor premises (facts of the plaintiff's case)
such that the syllogism showing liability is complete and
that liability necessarily, not only possibly, follows
(assuming the allegations of fact are true).
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion. However,
material which is properly submitted as part of the complaint
may be considered on a motion to dismiss.” Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted).
Similarly, “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss” without converting the motion to dismiss into
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule
of Evidence 201, a court may take judicial notice of
“matters of public record.” Mack v. S. Bay
Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.
1986). Otherwise, if the district court considers materials
outside of the pleadings, the motion to dismiss is converted
into a motion for summary judgment. See Arpin v. Santa
Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.
Court denies the motion for default judgment. Plaintiffs
argue that BOA has failed to answer within 21 days of being
served. The docket indicates that BOA (and other Defendants)
filed the present motion to dismiss on the 21st day after
service. A motion to dismiss under Rule 12 that is filed
within the time to answer constitutes a sufficient defense to
avoid a default and suspends the time to answer. See
Fed. R. Civ. P. 12(a)(4). If a court grants a motion to
dismiss, no answer to the dismissed pleading is required, and
if a court denies or postpones a ruling on the motion, a
defendant has 14 days from notice of the court's decision
to answer. See Fed. R. Civ. P. 12(a)(4)(A).
Accordingly, Defendants have not defaulted. Also, a plaintiff
seeking a default judgment must first petition the clerk of
court for entry of default; only after the clerk enters
default against a defendant may a plaintiff ask the court (or
the clerk under certain circumstances) to enter a default
judgment. See Fed. R. Civ. P. 55(a)-(b).
Court also grants the motion to dismiss. It appears clear
that the lawsuit arises out of a foreclosure of
Plaintiffs' real property. But Plaintiffs make few
allegations of fact concerning Defendants' wrongdoing
apart from generalized claims of “violations, ”
“crimes, ” “corruption, ” etc.
Plaintiffs do not even identify the real property at issue.
Plaintiffs do allege that certain Defendants conspired to
convince Defendant Harmony Title Agency to falsely state that
there was no lis pendens against the property. This allegation
is not sufficient to make out a claim under any of the listed
causes of action, however. Even if it is in fact true that
Defendants conspired to lie about the existence of a lis
pendens to a prospective buyer who then purchased the
property at issue where he would not have done so had he
known of the lis pendens, it is difficult to see how
Plaintiffs' interests in the property could have been
adversely affected. The buyer might be aggrieved by such a
misrepresentation, but Plaintiffs' interest in the
property cannot have been affected by a misrepresentation
made to the buyer.
importantly, as Defendants note, Plaintiffs previously filed
a similar action against some of the same Defendants in this
District arising out of the same foreclosure. The causes of
action listed in the present action mirror those made in the
first amended complaint of the previous action. Judge Du
dismissed the previous action without leave to amend.
(See Order, ECF No. 102 in Case No. 3:15-cv-306). An
appeal is pending. The Court will not adjudicate duplicative
claims contrary to Judge Du's ruling. See, e.g.,
Adams v. Cal. Dep't of Health Servs., 487 F.3d 684,
689 (9th Cir. 2007), overruled on other grounds by Taylor
v. Sturgell, 553 U.S. 880, 904 (2008).
HEREBY ORDERED that the Motion to Dismiss (ECF ...