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noting that courts in this district have recognized that Wells Fargo "is . . . the successor-in-interest to World Savings"
Summary of this case from Kang v. Wells Fargo BankOpinion
Case No. 17-cv-05004-CW
12-28-2017
JAMES P. MALVEAUX, Plaintiff, v. WELLS FARGO BANK, N.A.; BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP; FIRST AMERICAN TITLE COMPANY; BANK OF NEW YORK MELLON f/k/a BANK OF NEW YORK as Trustee for WORLD SAVINGS REMIC TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 19; RALPH PARTNERS II, LLC; AND ALL PERSONS KNOWN OR UNKNOWN CLAIMING AN INTEREST IN THE SUBJECT PROPERTY, and DOES 2 through 50, inclusive, Defendants.
ORDER GRANTING MOTIONS TO DISMISS AND ORDER TO SHOW CAUSE REGARDING SERVICE (Docket Nos. 14, 15, 19, 20, 22)
On August 29, 2017, Plaintiff James P. Malveaux, then unrepresented by counsel, filed a complaint initiating this action. On September 18, 2017, Defendants Wells Fargo Bank, N.A., and the Bank of New York Mellon moved to dismiss the complaint. Plaintiff did not respond to the motion within the fourteen days provided by Civil Local Rule 7-3(a) or file an amended complaint within the twenty-one days provided by Federal Rule of Civil Procedure 15(a)(1)(B). On October 18, 2017, the Court issued an order granting Plaintiff an extension of time to respond to the motion to dismiss. Instead of doing so, on October 25, 2017, Plaintiff, now represented by counsel, filed a first amended complaint (1AC), not accompanied by a stipulation or a motion for leave. On November 1, 2017, Defendants again moved to dismiss. Plaintiff opposed the motion and Defendants filed a reply.
Except where otherwise noted, references in this order to "Defendants" refer to these two moving Defendants.
Having considered the parties' papers, the record in this case and relevant authority, the Court grants leave for Plaintiff to file the 1AC; denies as moot Defendants' motion to dismiss the original complaint and request for judicial notice in support of that motion; grants Defendants' motion to dismiss the 1AC; and grants one further opportunity for Plaintiff to amend his claims. The Court also grants Defendants' request for judicial notice, filed in support of the motion to dismiss the 1AC, but sustains Plaintiff's objection and does not take judicial notice of the truth of disputed statements within the noticed documents. Finally, the Court orders Plaintiff to show cause why his claims against Defendants who have not yet appeared in this action should not be dismissed without prejudice due to lack of timely service.
BACKGROUND
Plaintiff alleges the following facts. Plaintiff owns a single family residence in Pacifica, California. On or about June 16, 2005, Plaintiff and his wife executed an adjustable rate mortgage secured by the property, consisting of a deed of trust, note, and adjustable rate rider. The deed of trust identifies World Savings Bank, FSB as the lender and Defendant First American Title Company as the title insurance company. Defendant Wells Fargo Bank, N.A., "holds itself out as the current servicer of Plaintiff's mortgage loan." 1AC ¶ 2. Other Defendants named in this action include Barrett Daffin Frappier Treder & Weiss, LLP (Barrett Daffin), which provides legal services and "default and foreclosure services," id. ¶ 3; the Bank of New York Mellon f/k/a the Bank of New York, which serves as trustee for the World Savings Remic Trust, Mortgage Pass-Through Certificates, Series 19; and Defendant Ralph Partners II, LLC, added as a Defendant in the 1AC, which purchased the property in a foreclosure sale.
A notice of default and election to sell under the deed of trust was recorded on August 22, 2010. A notice of rescission of this notice of default was recorded on August 8, 2014.
On October 29, 2015, a substitution of trustee was recorded, substituting Barrett Daffin as trustee under the deed of trust. Plaintiff alleges that this substitution violates the terms of the deed of trust.
A second notice of default and election to sell under the deed of trust was issued on February 18, 2016 by Barrett Daffin, and recorded on February 22, 2016. Plaintiff alleges that this notice was defective due to the July 2005 securitization of Plaintiff's loan. A notice of trustee's sale was recorded on December 20, 2016.
In January 2017, Plaintiff, represented by different counsel, filed a lawsuit in San Mateo County Superior Court, challenging Defendants' right to foreclose. Malveaux v. Wells Fargo Bank, N.A., San Mateo Superior Court No. 17-civ-00328. On January 25, 2017, the state court denied Plaintiff's petition for a temporary restraining order (TRO) enjoining foreclosure. Defendants filed a demurrer to the complaint, which the state court sustained at a hearing on April 25, 2017, followed by a written order filed May 11, 2017. The state court granted Plaintiff leave to amend, but Plaintiff did not timely amend his complaint and, on June 14, 2017, voluntarily dismissed the action without prejudice. Plaintiff alleges that he did so because a Wells Fargo representative informed him that the bank would allow him to sell his home through his realtor or "give him a loan modification if he qualified" only if he dismissed his lawsuit in San Mateo Superior Court as well as a bankruptcy proceeding. 1AC ¶¶ 64-66, 70.
Plaintiff alleges that he dismissed the lawsuit in June, 1AC ¶¶ 64-66, and again in July, id. ¶ 70. The Court takes judicial notice that the dismissal was filed in San Mateo County Superior Court on June 14, 2017.
Plaintiff alleges that he began submitting the requested documents for a loan modification application around the time that he voluntarily dismissed his state court lawsuit. In late June 2017, Plaintiff was informed that a trustee's sale was scheduled for early July 2017. His realtor contacted Wells Fargo and learned that Plaintiff had a new contact person for his loan modification. On or about July 6, 2017, Barrett Daffin notified Plaintiff that the trustee's sale of the property was postponed to August 30, 2017. Compl. Ex. F. On August 25, 2017, an unspecified Defendant "emailed Plaintiff that they were not going to proceed with the loan modification process," but did not inform him of his right to appeal the loan modification decision or afford him the opportunity of selling his home through his realtor. 1AC ¶¶ 71-73.
On August 29, 2017, Plaintiff filed this action and a motion for a TRO enjoining the August 30, 2017 foreclosure sale. On the same day, this Court denied the motion for a TRO because Plaintiff had neither notified Defendants of the motion nor shown why he should be excused from doing so. On August 30, 2017, at 1:15 p.m., Plaintiff recorded with the San Mateo Assessor-County Clerk-Recorder a notice of the pendency of this action, and brought a copy of the document to the place where the foreclosure sale was being held. The person conducting the sale took a picture of it with his cell phone. The trustee's sale took place and Ralph Partners purchased the property.
Plaintiff pleads inconsistent dates regarding the filing of the lawsuit, recording of the notice of pendency and foreclosure sale. 1AC ¶¶ 74-77. It appears that the references in the Complaint to September 2017 may be erroneous. In any amended complaint, Plaintiff must ensure that the facts plead, including all dates, are accurate. See Fed. R. Civ. P. 11(b).
In the 1AC, Plaintiff alleges claims for: (1) wrongful foreclosure; (2) quiet title; (3) unjust enrichment; (4) violation of California Civil Code sections 2923.6(c), 2923.55(a), (b)(1); (5) violation of California Civil Code section 2923.6(c) and/or section 2924; (6) violation of California's Unfair Competition Law (UCL), Civil Code section 17200; (7) accounting and verification of the alleged debt; (8) bank fraud under 18 U.S.C. § 1344; (9) fraud in the inducement; (10) promissory estoppel; (11) slander of title; and (12) violation of "each and every rule of the Federal Consumer Protection Bureau."
LEGAL STANDARD
A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). The plaintiff must proffer "enough facts to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). On a motion 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. Twombly, 550 U.S. at 555. A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
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. Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). The court's review is limited to the face of the complaint, materials incorporated into the complaint by reference, and facts of which the court may take judicial notice. Id. at 1061. However, the court need not accept legal conclusions, including threadbare "recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
Rule 9(b) provides that in "alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). "It is well-settled that the Federal Rules of Civil Procedure apply in federal court, 'irrespective of the source of the subject matter jurisdiction, and irrespective of whether the substantive law at issue is state or federal.'" Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). The allegations must be "specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985).
When granting a motion to dismiss, the court is generally required to grant the plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendment would be futile, the court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).
DISCUSSION
I. Filing of the First Amended Complaint
Defendants move to dismiss all claims because Plaintiff did not oppose the motion to dismiss his original complaint, and filed his amended complaint without Defendants' consent or leave of court and outside of the time for amendment as a matter of course under Federal Rule of Civil Procedure 15(a)(1). Plaintiff responds that this Court's October 18, 2017 order extending the time "to respond to the motion to dismiss" included leave to file an amended complaint. This interpretation is not consistent with the language of the order. Plaintiff's 1AC was untimely filed without consent or leave, in violation of Rule 15.
However, the Court must liberally grant leave to amend in the interest of justice, and the Court construes the October 25, 2017 declaration of Marianne Malveaux, Esq., and Plaintiff's November 15, 2017 opposition to the motion to dismiss as including a request for leave to file the 1AC. In the exercise of discretion, the Court grants the motion and deems the 1AC filed on October 25, 2017. The Court warns Plaintiff and his counsel, however, that they must carefully follow rules and orders in the future. II. Loan Securitization and Chain of Title
Many of the claims in the 1AC are predicated on Plaintiff's theory that his original lender, World Savings Bank, FSB, transferred or "securitized" his loan in July 2005 and failed to secure the chain of title to Wells Fargo, thereby depriving Wells Fargo of the right to enforce the loan contract and to initiate a non-judicial foreclosure. Indeed, Plaintiff alleges, "Simply stated, there is no successor---lender [sic] to WORLD SAVINGS in the mortgage loan." 1AC ¶ 15. Further, "the chain of title was irreversibly broken to the Subject Property with the lender's successor and assign (the true identity of the present beneficiary) unassigned, undocumented and unknown to date. In other words, there is no lender's successor and assign to WORLD SAVINGS in the mortgage loan." 1AC ¶ 23. The Court has rejected this argument previously, and Plaintiff has provided no reason to deviate from the Court's prior analysis. See Jackson v. Atlantic Sav. of Am., No. 13-cv-05755-CW, 2014 U.S. Dist. LEXIS 136521, **19-22 (N.D. Cal. 2014). Numerous courts have reached the same conclusion, including a recent and persuasive California appellate decision. See Kalnoki v. First American Trustee Servicing Solutions, LLC, 8 Cal. App. 5th 23, 41-44 (2017) (holding that even assuming the truth of similar securitization allegations, they would be insufficient to set aside foreclosure).
Despite many paragraphs in the 1AC dedicated to boilerplate allegations concerning the securitization process, Plaintiff ultimately disclaims any reliance on a securitization theory. See 1AC ¶ 48 ("Plaintiff is not alleging or challenging 'securitization.' Plaintiff is alleging that Defendants are not the real parties in interest because of their failure to secure the chain of title to the Subject Property during the securitization process."); Opp. at 5 ("Plaintiff does not challenge the securitization of Plaintiff's mortgage loan. Instead, he points to the Bank Defendants [sic] failure to ensure CLEAR the chain of title for each and every mortgage Bank Defendants allegedly 'acquired' by whatever means.").
Plaintiff fails to plead any facts suggesting a defect in the chain of title to his particular loan, as opposed to unspecified loans of other borrowers. Moreover, judicially noticeable documents demonstrate that due to the name change of World Savings to Wachovia Mortgage, FSB, and Wachovia's subsequent merger into Wells Fargo, Wells Fargo is indeed the successor-in-interest to World Savings. Defs. RJN Exs. A-E. As Defendants note, courts have recognized this corporate transaction. See, e.g., Wolf v. Wells Fargo Bank, N.A., No. 11-cv-01337-WHA, 2011 U.S. Dist. LEXIS 117835, *3 (N.D. Cal. Oct. 12, 2011) ("World Savings changed its name to Wachovia Mortgage in late 2007. Wachovia Mortgage then became part of Wells Fargo Bank in 2009 and is the current holder of the note."); Nguyen v. Wells Fargo Bank, N.A., 749 F. Supp. 2d 1022, 1024-1025 (N.D. Cal. 2010) ("judicially noticeable documents reveal that the original lender, World Savings Bank, FSB, simply changed its name to Wachovia Mortgage, FSB, and is now a division of Wells Fargo Bank, N.A., so transfers among those entities were proper").
Because Plaintiff has failed to allege any defect in the chain of title, or securitization, of his loan, all the claims dependent on that theory fail, and the Court dismisses them. This includes, in particular, the entirety of Claims 1, 2, 3 and 11, as well as Plaintiff's other claims to the extent that they rely on this theory, including Claims 4, 6, 7, 8, 10 and 12. The Court will grant leave to amend these claims, but Plaintiff must allege facts plausibly supporting each claim and set forth a viable legal theory. III. Homeowner Bill of Rights
Plaintiff's wrongful foreclosure claim also suffers from additional defects, including the fact that Plaintiff agreed when he signed the trust deed that the lender could at any time appoint a successor trustee. See 1AC Ex. A at § 27; see also id. §§ 1(C) & 1(H) (specifying that successors and/or assignees of World Savings Bank would become lenders and beneficiaries under the deed of trust).
Plaintiff's slander of title claim also suffers from additional defects, including that Plaintiff fails to plead any facts showing that Defendants acted without privilege or justification. See Stowers v. Wells Fargo Bank, N.A., No. 13-cv-05426-RS, 2014 WL 1245070, *7 (N.D. Cal. Mar. 25, 2014).
Plaintiff's fourth and fifth claims seek relief under California's Homeowner Bill of Rights (HBOR), Cal. Civil Code §§ 2923.6, 2923.55, 2924. In part, these claims seem predicated on the same chain-of-title theory discussed above, and fail for the same reasons. Plaintiff also, however, appears to assert a claim on the independent theory that Defendants violated the HBOR's prohibition on "dual-tracking," the practice of a mortgage servicer continuing to pursue foreclosure of a property while a complete loan modification application is pending. See Cal. Civ. Code § 2923.6(c).
Defendants argue that this claim should be dismissed because Plaintiff does not adequately allege that he had submitted a complete loan modification application at the time that Defendants proceeded with the foreclosure process. Section 2923.6(c) protects a borrower who "submits a complete application for a first lien loan modification." Cal. Civ. Code § 2923.6(c). The statute provides, "For purposes of this section, an application shall be deemed 'complete' when a borrower has supplied the mortgage servicer with all documents required by the mortgage servicer within the reasonable timeframes specified by the mortgage servicer." Cal. Civ. Code § 2923.6(h).
As this Court has explained previously, a loan modification application is "complete" for the purpose of triggering the protections of HBOR if a plaintiff has timely provided all documents required in advance by a lender for the submission of a loan modification application, even if the lender requires supplemental documents later. See Di Loreto v. Chase Manhattan Mortg. Corp., No. 17-cv-05187-CW, 2017 WL 5569834, at *5 (N.D. Cal. Nov. 20, 2017) (citing Mace v. Ocwen Loan Servicing, LLC, 252 F. Supp. 3d 941, 946 (N.D. Cal. 2017)).
Plaintiff fails, however, to assert that his loan modification application was complete before Defendants took any prohibited foreclosure action. He alleges that he "began submitting the requested documents," 1AC ¶ 67, but does not allege that he completed the application. Nor does he allege what documents were required for the application to be complete, either pursuant to any instructions by Defendants or pursuant to any agreement reached in connection with the dismissal of Plaintiff's state court lawsuit. The same failure to allege completeness requires dismissal of Plaintiff's claim that Defendants only notified him of the denial of his loan modification application by email, not in a compliant written denial under section 2923.6(c)(1)-(3). See 1AC ¶¶ 71-72.
Additionally, to the extent that Plaintiff attempts to assert a claim that Defendants did not provide him with information in writing upon his request in violation of section 2923.55(b)(1), he does not adequately allege what information he requested and when, or what, if any, response he received from Defendants. Likewise, he does not allege facts supporting a claim that Defendants' contacts with him prior to foreclosure were insufficient under section 2923.55(a) despite the declaration of compliance attached to the recorded notice of default. See 1AC Ex. E. at 4. The Court does not assume the truth of the declaration of compliance, but Plaintiff must allege facts giving rise to a claim that the declaration of compliance is inaccurate, not merely a conclusory allegation of the legal standard. Iqbal, 556 U.S. at 678; see also Kamp v. Aurora Loan Services, 2009 U.S. Dist. LEXIS 95245, **6-7 (C.D. Cal. 2009) (holding that plaintiffs' "conclusory assertions are contradicted by the notice of default" that included the HBOR declaration of compliance).
The Court will dismiss Plaintiff's fourth and fifth claims, seeking relief under HBOR, for failure to allege necessary facts, but will grant leave to amend these claims so that Plaintiff may clarify his legal theory and attempt to plead the required facts. IV. Unfair Competition Law
Defendants contend that Plaintiff's UCL claim is entirely derivative of his other defective claims, and must be dismissed for the same reasons. In response, Plaintiff essentially concedes that this is so. He argues that his HBOR claim under section 2923.55 and his wrongful foreclosure claim survive dismissal, and that therefore his UCL claim also survives. Because the Court has dismissed Plaintiff's HBOR and wrongful foreclosure claims, it dismisses his derivative UCL claim as well.
Plaintiff's UCL claim suffers from additional defects. Plaintiff fails adequately to allege that he lost money or property as a result of Defendants' actions. Bus. & Prof. Code § 17204; Daro v. Superior Court, 151 Cal. App. 4th 1079, 1098 (2007) ("a private person has standing to sue under the UCL only if that person has suffered injury and lost money or property 'as a result of such unfair competition.'"). In any amended complaint, Plaintiff must plead facts sufficient to show the causation and injury required by the UCL.
The UCL claim also contains a list of allegedly deceptive business practices that appears to be erroneously copied from another case. See 1AC ¶ 115 (referring to "MERS," "SLS," "MLF" and "HSBC"). Plaintiff must carefully review any amended complaint to ensure that he accurately pleads the facts of this case. V. Accounting
Defendants argue that Plaintiff's claim for an accounting should be dismissed without leave to amend, because Plaintiff cannot plead the necessary relationship between the parties, and does not plead that any Defendant owes Plaintiff a definite sum of money. "A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting." Teselle v. McLoughlin, 173 Cal. App. 4th 156, 179 (2009). Plaintiff responds that Defendants owe him a sum of money represented by the value of his home over and above the amount that he owed Defendants when the home was sold, and requests leave to amend to allege facts supporting this claim. This legal theory is different from the theory set forth in the 1AC, which is derivative of the failed "securitization" theory. See 1AC ¶¶ 120-124 ("Defendants should provide an accounting of profits made on the Subject Property from their Wall Street dealings."). The Court dismisses Plaintiff's seventh cause of action, for an accounting, as currently plead. However, in light of the facts that Plaintiff pleads regarding the foreclosure sale of his home, the Court cannot find that it would be futile to grant Plaintiff leave to amend to allege facts in support of a claim for an accounting of Defendants' profits at the foreclosure sale. Among the other elements that Plaintiff must plead in support of any amended claim for an accounting, he must plead facts giving rise to a plausible claim that Defendants have not already provided him with the information that he seeks, or that he does not already have ready access to the information. See Teselle, 173 Cal. App. 4th at 179. VI. Fraud
Plaintiff's eighth, ninth and tenth claims allege, under various legal theories, that Defendants defrauded him by offering him a loan modification to induce him to dismiss his state court lawsuit, and then recanting the offer and foreclosing without adequate notice after he dismissed his state court lawsuit in reliance. Each of these claims suffers from a common defect. Plaintiff alleges that Wells Fargo representatives "informed him that Wells Fargo would give him a loan modification if he qualified," 1AC ¶ 65 (emphasis added), and would not give him a loan modification if his state court lawsuit remained pending, id. ¶ 64. His factual allegations do not support his legal claims that Defendants "breached an agreement to give Plaintiff a Loan Modification," id. at ¶ 126 (bank fraud claim), made him an "offer of a loan modification," id. at 130 (fraud in the inducement claim), or "promised plaintiff that he would receive a loan modification if he dropped his lawsuit in State court," id. at ¶ 134 (promissory estoppel claim). In opposition to the motion to dismiss, Plaintiff does not address his own factual allegation that Wells Fargo only offered to consider him for a loan modification if he dismissed his state court lawsuit, and give him a loan modification if he qualified. Accordingly, the Court finds that these claims must be dismissed because Plaintiff has not plead any misrepresentation by Defendants. He does not allege that Defendants did not consider him for a loan modification after he dropped his state court lawsuit, only that he did not receive a loan modification.
The Court will grant Plaintiff leave to amend these claims to plead facts alleging each element of each claim, including the "'the who, what, when, where, and how' of the misconduct charged." Kearns, 567 F.3d at 1124. Plaintiff must allege, consistent with Federal Rule of Civil Procedure 11, the statements that Defendants made to him and the actions that they took that made those statements misleading or fraudulent. If Plaintiff attempts to amend these claims, he may only allege other facts consistent with his complaint and 1AC. Reddy, 912 F.2d at 297.
In future briefing, the parties should explain their positions regarding which claims, if any, must be plead under the heightened standard of Federal Rule of Civil Procedure 9(b).
Defendants also argue that Plaintiff's tenth claim, for promissory estoppel, is barred by the statute of frauds, which provides that any agreement "for the sale of real property, or of an interest therein," is invalid unless it is "in writing and subscribed by the party to be charged or by the party's agent." Cal. Civil Code § 1624(a), (a)(3). A mortgage is subject to the statute of frauds. Cal. Civil Code § 2922. Plaintiff does not oppose the motion to dismiss on this basis. Accordingly, the Court will grant Defendants' motion to dismiss Plaintiff's promissory estoppel claim on this additional ground. The Court will grant Plaintiff leave to amend to allege facts supporting the existence of a settlement agreement or other writing that would satisfy the statute of frauds. VII. Violation of Federal Consumer Protection Bureau Rules
Plaintiff claims that "Defendant Wells Fargo violated each and every rule of the Federal Consumer Protection Bureau in this matter." 1AC ¶ 140. This claim appears to be derivative of his HBOR claims. Id. ¶¶ 141-42. Defendants move to dismiss it because the conclusory allegations are insufficient to place them on fair notice of what claim they are to defend. Plaintiff does not oppose dismissal of this claim, or mention it in his opposition, and the Court will dismiss it. VIII. Failure to Join Indispensable Party
Defendants move to dismiss all claims in the 1AC for failure to join an indispensable party. Plaintiff alleges that his wife was a co-borrower, and the documents attached to the 1AC and subject to judicial notice reflect this fact. Defendants argue that Ms. Malveaux has a substantial interest in the claims in this litigation and prejudice would result if she is not a party to this action. In response, Plaintiff appears to have omitted half of a sentence and a relevant exhibit that would explain his opposition to dismissal on this ground. Opp. at 4.
On October 26, 2017, the Clerk entered a notice to counsel that Exhibit G was missing, but Plaintiff has not responded.
The Court does not reach this argument because it dismisses Plaintiff's claims on other grounds. However, in any amended complaint, Plaintiff must either include Ms. Malveaux as a party or allege facts showing why judgment rendered in her absence would be adequate or why Rule 19 is inapplicable for other reasons. Such facts will be particularly (although not only) relevant to any claim for non-monetary relief, such as Plaintiff's claim for quiet title.
In reply, Defendants contend that Ralph Partners, too, is an indispensable party. Because Ralph Partners is already named as a defendant in the 1AC, this argument fails. The Court does not reach the question of whether Ralph Partners is indispensable, although it may be raised again later if Plaintiff fails timely to serve Ralph Partners.
Having dismissed the 1AC in its entirety, the Court does not reach Defendants' remaining arguments for dismissal. IX. Service
Only two Defendants, Wells Fargo and the Bank of New York Mellon, have appeared in this case to date.
Defendants Barrett Daffin and First American Title Company were named in the complaint filed August 29, 2017, but Plaintiff has not sought issuance of summons to them. See Fed. R. Civ. P. 4(b). In their "Unilateral Rule 26(f) Report," Wells Fargo and the Bank of New York Mellon contend that Barrett Daffin, as the foreclosure trustee, is a "nominal party serving as Wells Fargo's ministerial agent" which should not be required to join in the joint case management statement. Neither Barrett Daffin nor First American Title Company has appeared in this action, and more than ninety days have passed after the filing of the complaint. See Fed. R. Civ. P. 4(m).
Defendant Ralph Partners was first named in the 1AC submitted on October 25, 2017. On December 13, 2017, Plaintiff sought issuance of summons to Ralph Partners. Ninety days after the filing of the 1AC will have passed on January 23, 2018.
The Court has dismissed all claims in the 1AC and granted leave to amend. Accordingly, the Court will not also order Plaintiff to show cause regarding service immediately. The Court warns Plaintiff, however, that if he timely files a second amended complaint, he must promptly seek issuance of summons as to all Defendants who have not already been served and must serve them in compliance with Federal Rule of Civil Procedure 4 if waiver of service cannot be obtained. Within seven days after filing a second amended complaint, Plaintiff must file a written report with this Court regarding the status of service on all named Defendants that have not already appeared in this action. If Plaintiff asserts claims against Barrett Daffin and First American Title, he must serve them in compliance with Rule 4, or obtain waiver of service, before filing his status report, or show cause why the claims against them should not be dismissed without prejudice pursuant to Rule 4(m).
Plaintiff must file a written report regarding service on Ralph Partners no later than January 24, 2018. If Plaintiff has not served Ralph Partners or obtained a waiver of service by that date, he must show cause why the claims against Ralph Partners should not be dismissed without prejudice pursuant to Rule 4(m).
Failure to file either of the written status reports regarding service or to comply in any respect with this order shall result in dismissal without prejudice under Rule 4(m) without further notice.
CONCLUSION
The Court GRANTS leave for Plaintiff to file the 1AC (Docket No. 17).
The Court DENIES AS MOOT Defendants' motion to dismiss the original complaint (Docket No. 14) and Defendants' request for judicial notice in support of that motion to dismiss (Docket No. 15).
The Court grants Defendants' motions for judicial notice of the documents submitted in support of the motion to dismiss the 1AC (Docket No. 20), but sustains Plaintiff's objection (Docket No. 22) and does not take judicial notice of the truth of disputed statements within the documents.
The Court GRANTS Defendants' motion to dismiss the 1AC (Docket No. 19). Because the Court has dismissed all claims, the Court does not reach Defendants' additional and alternative arguments for dismissal of some of the claims. Plaintiff may replead any or all of his dismissed claims if he can truthfully allege, without contradicting the allegations in his previous complaints, facts sufficient to show that he is entitled to relief. Any second amended complaint is due within twenty-one days after the date of this order and must be accompanied by the filing of a redline version showing the changes made in the second amended complaint.
If Plaintiff timely files a second amended complaint, he must immediately seek issuance of summons as to all Defendants who have not already been served and must serve them in compliance with Federal Rule of Civil Procedure 4 if waiver of service cannot be obtained. Within seven days after filing a second amended complaint, Plaintiff must file a written report with this Court regarding the status of service on all named Defendants. If Defendant Ralph Partners has not appeared, Plaintiff must file a further written report regarding the status of service on Ralph Partners by January 24, 2018. Failure to file either of the written status reports regarding service shall result in dismissal without prejudice under Rule 4(m) without further notice.
The response of Defendants Wells Fargo and the Bank of New York Mellon shall be due within twenty-one days after the second amended complaint is filed. The response of all other Defendants shall be due within the time provided by the Federal Rules of Civil Procedure.
If Plaintiff does not timely file a second amended complaint, the Court will dismiss Plaintiff's claims against Wells Fargo and the Bank of New York Mellon with prejudice without further notice, and will dismiss Plaintiff's claims against Defendants Barrett Daffin, First American Title Company and Ralph Partners without prejudice.
Defendants shall notice any motions to dismiss the second amended complaint for March 27, 2018, at 2:30 p.m. Defendants shall join in a single motion to dismiss to the greatest extent possible, and shall not file duplicative briefing. Plaintiff shall file a single opposition brief in response to all motions to dismiss.
The Court hereby continues the initial case management conference to March 27, 2018, at 2:30 p.m. The joint case management statement is now due March 20, 2018.
IT IS SO ORDERED. Dated: December 28, 2017
/s/_________
CLAUDIA WILKEN
United States District Judge