Luong v. Mortgage Electronic Registration Systems Inc (MERS)

[7] UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON [8] AT SEATTLE [9] KHAI LUONG, CASE NO. C19-1923RSM [10] Plaintiff, ORDER GRANTING DEFENDANTS’ 11 MOTION TO DISMISS WITH LEAVE v. TO AMEND [12] MORTGAGE ELECTRONIC 13 REGISTRATION SYSTEMS, INC., et al., [14] Defendants. [15] This matter comes before the Court on a Motion to Dismiss brought by Defendants [16] Wells Fargo Bank, N.A. (“Wells Fargo”) and Mortgage Electronic Registration Systems, Inc. [17] (“MERS”). Dkt. #6. Plaintiff Khai Luong has failed to oppose this Motion. Pursuant to local [18] rule, the Court interprets this failure as an admission that the Motion has merit. See LCR [19] 7(b)(2). For the reasons stated below, the Court GRANTS Defendants’ Motion and dismisses [20] all of Plaintiff’s claims with leave to amend. [21] In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as [22] true, and makes all inferences in the light most favorable to the non-moving party. Baker v. [23] Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted). [24] 1 However, the court is not required to accept as true a “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, [2] 550 U.S. 544, 555 (2007)). The complaint “must contain sufficient factual matter, accepted as [3] true, to state a claim to relief that is plausible on its face.” Id. at 678 . This requirement is met [4] when the plaintiff “pleads factual content that allows the court to draw the reasonable inference [5] that the defendant is liable for the misconduct alleged.” Id. The complaint need not include [6] detailed allegations, but it must have “more than labels and conclusions, and a formulaic [7] recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 . Absent [8] facial plausibility, a plaintiff’s claims must be dismissed. Id. at 570 . [9] This case was removed from King County Superior Court on November 25, 2019. Dkt. [10] #1. Plaintiff’s state court Complaint contains no facts or causes of action; it simply cites to [11] cases in other jurisdictions dealing with foreclosures. See Dkt. #1-4. Attachments to Plaintiff’s [12] Complaint include certain facts and argument. As it stands, the Complaint clearly fails to [13] satisfy Rule 8(a)’s requirement that a pleading contain a “short and plain statement of the claim [14] showing that the pleader is entitled to relief.” This must be within the Complaint itself. Under [15] the above legal standards, dismissal of Plaintiff’s claims is therefore warranted. [16] Where a complaint is dismissed for failure to state a claim, “leave to amend should be [17] granted unless the court determines that the allegation of other facts consistent with the [18] challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv19 Well Furniture Co., 806 F.2d 1393 , 1401 (9th Cir. 1986). [20] Both parties have submitted additional documents that shed light on what Plaintiff is [21] claiming. Plaintiff’s attachments indicate that he is claiming that Defendants are illegally [22] foreclosing on his property and engaging in mortgage fraud, and that Defendants must “furnish [23] the original wet ink promissory note.” Dkt. #1-1 at 3. [24] 1 Defendants have filed a request for judicial notice. Dkt. #7. Defendants argue that the Court can take judicial notice of “Exhibits 2, 4, and 6–8 [because] they are true and correct [2] copies of official records of the King County Recorder’s Office, whose authenticity is capable [3] of accurate and ready determination.” Id. at 3 (citing Fed. R. Evid. 201(b); Castillo-Villagra v. [4] INS, 972 F.2d 1017, 1026 (9th Cir. 1992)). Defendants also ask to take judicial notice of [5] documents referred to in the complaint and incorporated by reference, see Branch v. Tunnell, 14 6 F.3d 449, 453-54 (9th Cir. 1994), as well as a death certificate issued by the State of [7] Washington. Plaintiff has not opposed judicial notice on any of these documents. The Court [8] agrees it can consider them. [9] Considering all these documents and the arguments by Defendants, the Court finds that [10] Plaintiff should be granted one final opportunity to amend his claims. Defendants maintain that [11] Plaintiff’s claims cannot be brought against them without the participation of other parties, that [12] his claims lack sufficient supporting facts, and that Plaintiff has waived certain claims by failing [13] to file them before the foreclosure, but that other claims may be filed after the foreclosure. See [14] Dkt. #6. There is simply too much uncertainty about exactly what Plaintiff is pleading at this [15] point to say that Plaintiff could not amend his pleadings to bring claims that could survive [16] immediate dismissal. Leave to amend will therefore be granted. [17] Having reviewed the relevant pleadings and the remainder of the record, the Court [18] hereby finds and ORDERS: [19] (1) Defendants’ Motion to Dismiss, Dkt. #6, is GRANTED. Plaintiff’s claims are [20] DISMISSED. [21] (2) Plaintiff is granted leave to file an Amended Complaint curing the above-mentioned [22] deficiencies no later than thirty (30) days from the date of this Order. This [23] Amended Complaint will replace the existing Complaint, and it must include [24] 1 specific causes of action and facts to support them. The Court will not consider facts contained outside the pleading. Failure to file an Amended Complaint within this [2] time period will result in this case being closed. [4] DATED this 30 day of December, 2019. [6] A [7] RICARDO S. MARTINEZ 8 CHIEF UNITED STATES DISTRICT JUDGE