Brosnahan v. Caliber Home Loans Incorporated et al

Filing 23

ORDER granting 14 Motion to Dismiss. Plaintiff shall have 30 days from the date of this order in which to file a second amended complaint that complies with the Federal Rules of Civil Procedure, if he so chooses. The Clerk of the Court shall terminate this case without further order of the Court if Plaintiff fails to file a second amended complaint within the timeframe specified herein. Signed by Judge Douglas L Rayes on 9/19/2017. (MMO)

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Case 3:16-cv-08277-DLR Document 23 Filed 09/19/17 Page 1 of 4 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael J Brosnahan, Plaintiff, 10 11 Caliber Home Loans Incorporated, et al., 13 ORDER v. 12 No. CV-16-08277-PCT-DLR Defendants. 14 15 16 At issue is a motion to dismiss filed on behalf of Defendants Caliber Home Loans, 17 Inc., LSF9 Master Participation Trust, and Summit Service and Realty LLC. (Doc. 14.) 18 The motion is fully briefed and neither party requested oral argument. For the following 19 reasons, Defendants’ motion is granted. 20 I. Background 21 This case arises out of the pending non-judicial foreclosure of real property owned 22 by pro se Plaintiff Michael Brosnahan and located in Sedona, Arizona (“Property”). 23 Plaintiff borrowed $373,500.00 from Countrywide Home Loans, Inc. (“Countrywide”) in 24 2006, and concurrently executed a deed of trust securing repaying of the loan using the 25 Property as collateral. Plaintiff stopped paying on the loan in 2009. 26 On November 22, 2016, Plaintiff filed this action, initially alleging a single claim 27 against Defendants for violating the Fair Debt Collections Practices Act (“FDCPA”). 28 Plaintiff also filed an application for a temporary restraining order (“TRO”), in which he Case 3:16-cv-08277-DLR Document 23 Filed 09/19/17 Page 2 of 4 1 asked the Court to enjoin the non-judicial foreclosure of the Property scheduled the 2 following day. The Court denied Plaintiff’s TRO application after finding that he had not 3 complied with Federal Rule of Civil Procedure 65(b)(1)’s notice requirements. (Doc. 7.) 4 The Court also found that Plaintiff was not likely to succeed on the merits of his claim 5 because mortgagees and their beneficiaries are not debt collectors subject to the FDCPA, 6 and actions taken to facilitate non-judicial foreclosure are not attempts to collect a debt 7 within the meaning of the act. (Id.) 8 Plaintiff thereafter filed an amended complaint, which purports to assert three 9 claims for violations of the (1) Real Estate Settlement Procedures Act (“RESPA”), (2) 10 Truth in Lending Act (“TILA”), and FDCPA. (Doc. 13.) Defendants have moved 11 pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the amended complaint 12 for failure to state a claim upon which relief may be granted. 13 II. Legal Standard 14 When analyzing a complaint for failure to state a claim to relief under Rule 15 12(b)(6), the well-pled factual allegations are taken as true and construed in the light 16 most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th 17 Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the 18 assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and therefore are 19 insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. 20 Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). Nor is the court required to accept as true 21 “allegations that contradict matters properly subject to judicial notice,” or that merely are 22 “unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State 23 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 24 To avoid dismissal, the complaint must plead sufficient facts to state a claim for 25 relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 26 This plausibility standard “is not akin to a ‘probability requirement,’ but it asks for more 27 than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 28 (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely -2- Case 3:16-cv-08277-DLR Document 23 Filed 09/19/17 Page 3 of 4 1 consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and 2 plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557.) 3 III. Discussion 4 One of the primary functions of a complaint is to provide defendants with notice 5 of the legal claims asserted against them and the factual bases for those claims. See 6 McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). A complaint written “without 7 simplicity, conciseness and clarity” as to who is being sued and for what, “fails to 8 perform the essential functions of a complaint.” Id. at 1180. Accordingly, the Federal 9 Rules of Civil Procedure place certain basic minimum requirements on the form and 10 content of complaints to ensure that they serve their basic functions. Pursuant to Rule 11 8(a), a complaint must contain “a short and plain statement of the grounds for the court’s 12 jurisdiction,” “a short and plain statement of the claim showing that the pleader is entitled 13 to relief,” and “a demand for the relief sought.” Rule 10(b) requires claims or defenses to 14 be set forth “in numbered paragraphs, each limited as far as practicable to a single set of 15 circumstances.” 16 Plaintiff’s complaint must be dismissed because it does not comply with these 17 rules and, therefore, fails to state a plausible claim for relief. Instead of providing a short 18 and plain statement showing that he is entitled to relief, Plaintiff has submitted a 19 rambling 27-page narrative that fails to clearly and concisely state the factual and legal 20 bases for his claims. Plaintiff’s complaint, which consists primarily of legal jargon rather 21 than factual allegations, is far too verbose and convoluted to understand, and is 22 insufficient to put Defendants or this Court on fair notice of the claims at issue. 23 Although courts generally construe the pleadings of pro se litigants liberally, “pro 24 se litigants are bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th 25 Cir. 1995). Moreover, Plaintiff is not a newcomer to federal litigation. Including this 26 action, Plaintiff has litigated three cases in this District since 2009, all raising objections 27 to non-judicial foreclosures. (See Brosnahan v. JPMorgan Chase Bank, et al., 3:09-cv- 28 08224-JAT (“2009 Case”); Brosnahan v. Bank of America, et al., 3:10-cv-08056-FJM -3- Case 3:16-cv-08277-DLR Document 23 Filed 09/19/17 Page 4 of 4 1 (“2010 Case”).) Both of Plaintiff’s prior cases were dismissed for failure to comply with 2 Rule 8’s basic pleading requirements. (See Docs. 27, 54 in the 2009 Case; Doc. 21 in the 3 2010 Case.) By now, Plaintiff should know about the rules governing pleadings in 4 Federal courts and be able to comply. 5 Nonetheless, the Court will afford Plaintiff the opportunity to revise his complaint 6 so that it comports with basic pleadings requirements. 7 himself with the Federal Rules of Civil Procedure, particularly Rules 8, 9, and 10. 8 Plaintiff should also carefully review Defendants’ motion to dismiss, as well as this 9 Court’s prior order denying his TRO application, and ensure that his amended pleading 10 Plaintiff should familiarize does not contain claims that are unsupportable by fact or law. 11 IT IS ORDERED that Defendants’ motion to dismiss (Doc. 14) is GRANTED. 12 Plaintiff shall have 30 days from the date of this order in which to file a second amended 13 complaint that complies with the Federal Rules of Civil Procedure, if he so chooses. The 14 Clerk of the Court shall terminate this case without further order of the Court if Plaintiff 15 fails to file a second amended complaint within the timeframe specified herein. 16 Dated this 19th day of September, 2017. 17 18 19 20 21 Douglas L. Rayes United States District Judge 22 23 24 25 26 27 28 -4-

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