Dagupion v. Green Tree Servicing, LLC et al

Filing 41

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH RESPECT TO DEFENDANT GREEN TREE SERVICING, LLC 37 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 9/14/11. ("Dagupion may file a motion seeking leave to file an attached Second Amended Co mplaint no later than September 29, 2011.") (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARC DAGUPION,

)
)
Plaintiff,
)
)
vs.
)
)
GREEN TREE SERVICING, LLC;
)
NATIONAL CITY MORTGAGE CO., a )
subsidiary of NATIONAL CITY
)
BANK, now known as PNC BANK, )
NATIONAL ASSOCIATION; LOAN
)
NETWORK LLC; JOHN DOES 1-10, )
JANE DOES 1-10; DOE
)
CORPORATIONS, PARTNERSHIPS OR )
OTHER ENTITIES 1-10,
)
)
Defendants.
)
)

CIVIL NO. 11-00120 SOM/KSC
ORDER DISMISSING FIRST
AMENDED COMPLAINT WITH
RESPECT TO DEFENDANT GREEN
TREE SERVICING, LLC

ORDER DISMISSING FIRST AMENDED COMPLAINT
WITH RESPECT TO DEFENDANT GREEN TREE SERVICING, LLC
On July 14, 2011, Marc Dagupion filed a First Amended
Complaint.

Dagupion alleges that Green Tree Servicing, LLC,

National City Mortgage, and Loan Network LLC violated state and
federal statutes in connection with a residential mortgage loan.
PNC Bank, N.A., is the successor by merger to National City
Mortgage.

See ECF No. 36.

On July 28, 2011, Green Tree filed a

motion to dismiss the First Amended Complaint with prejudice.
See ECF No. 37.
On September 9, 2011, Dagupion filed a document that he
titled “Plaintiff Marc Dagupion’s Memorandum in Opposition to
Defendant Green Tree Servicing, LLC’s Motion to Dismiss First
Amended Complaint.”

See ECF No. 39.

Although titled as an

“Opposition,” the document does not oppose Green Tree’s motion,
except in a conclusory fashion with no citations to the record or
authority.

Instead, the “Opposition” notes that Robin R. Horner,

counsel for Dagupion, is too busy to “address every case and
motion and pleading on [his] own and must rely on staff.”
Opposition at 8.

See

Now that Horner has actually reviewed this

case, he states that “it is fairly clear to [Horner] that
Dagupion needs to file a motion with the court for leave to amend
the complaint further” to add a necessary party and clarify the
allegations against Green Tree.

Id. at 10-11.

Horner says that

he is in the process of preparing such a motion, id. at 11, and
is not “going to attempt at this time to address all of the
points raised by [Green Tree] in its motion to dismiss because
[Horner] believe[s] the matter will be rendered moot by the
prospective motion and proposed amended pleading.”

Id. at 12.

Horner then “suggests” to the court that it “not spend a
substantial amount of time attempting to criticize [Horner] for
any frailties or purported defects in the pleading.”

Id. at 13.

In short, no substantive opposition to Green Tree’s
motion has been filed.

Accordingly, the court grants Green

Tree’s motion to dismiss as unopposed without a hearing pursuant
to Local Rule 7.2(d).

Although Green Tree sought dismissal with

prejudice, the dismissal of Green Tree is without prejudice.

2

Dagupion may file a motion seeking leave to file an
attached Second Amended Complaint no later than September 29,
2011.

The court is not suggesting that such a motion should or

should not be granted.
31 (9th Cir. 2000).

See Lopez v. Smith, 203 F.3d 1122, 1130-

In proposing a Second Amended Complaint,

Horner should ensure that the required minimal pleading standards
are met.

This means that, before simply reasserting claims,

counsel should examine the relevant facts and tailor claims based
on those facts.

For example, if Green Tree is being sued in a

count, Dagupion must ensure that the factual and legal basis for
holding Green Tree liable is sufficiently alleged.

Having been

cautioned against filing unwarranted claims and sanctioned in
other cases, Dagupion’s counsel should ensure that no unwarranted
claims are asserted in any proposed Second Amended Complaint.
If, for example, a claim is barred by the relevant statute of
limitation, it should not be asserted.

If there is no legal

justification for holding Green Tree liable for another company’s
conduct, a claim against Green Tree should not be asserted.
Finally, because the claims asserted in various “form complaints”
filed by Horner on behalf of his clients have been rejected
numerous times, Dagupion should consider whether it is
appropriate to assert them in this action at all.

3

In reminding

counsel about his Rule 11 obligations, this court expresses no
inclination as to the validity of any claim Dagupion may attempt
to assert.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 14, 2011.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Dagupion v. Green Tree Servicing, LLC, et al.; Civil No. 11-00120 SOM/KSC;
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH RESPECT TO DEFENDANT GREEN TREE
SERVICING, LLC

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