Bald et al v. Wells Fargo Bank, N.A. et al

Filing 31

ORDER GRANTING DEFENDANT WELLS FARGO BANK, N.A.'S EX PARTE MOTION UNDER L.R. 40.2 TO ASSIGN SIMILAR CASE TO A SINGLE DISTRICT COURT JUDGE re: 18 . Signed by JUDGE LESLIE E. KOBAYASHI on 6/5/2013. Excerpt of Conclusion: ~ "The Court DIRECTS the Clerk's Office to reassign this case, including all pending motions in the instant case, to Chief United States District Judge Susan Oki Mollway and United States Magistrate Judge Richard L. Pugl isi." ~ Case reassigned to CHIEF U.S. DISTRICT JUDGE SUSAN OKI MOLLWAY and U.S. JUDGE RICHARD L. PUGLISI; Please reflect new case number CV 13-00135-SOM-RLP on all further pleadings. Motions referred to Chief Judge Susan Oki Mollway: (1) 5 Defendants The Law Office of David B. Rosen, a Law Corporation, and David B. Rosen's MOTION to Dismiss Complaint for failure to State a Claim, and (2) 8 Defendant Wells Fargo Bank, N.A.'s MOTION to Dismiss Plaintiffs' Complaint. (afc) 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
DAVID EMORY BALD and EMILY
LELIS, individually and on
behalf of all others
similarly situated,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
WELLS FARGO BANK, N.A., a
national banking association; )
)
THE LAW OFFICE OF DAVID
)
ROSEN, A LAW CORPORATION, a
)
Hawaii professional
corporation; DAVID B. ROSEN, )
)
individually; and DOE
)
DEFENDANTS 1-50,
)
)
Defendants.
_____________________________ )

CIVIL NO. 13-00135 LEK-KSC

ORDER GRANTING DEFENDANT WELLS FARGO BANK, N.A.’S
EX PARTE MOTION UNDER L.R. 40.2 TO ASSIGN
SIMILAR CASE TO A SINGLE DISTRICT COURT JUDGE
Before the Court is Defendant Wells Fargo Bank, N.A.’s
(“Wells Fargo”) Ex Parte Motion under L.R. 40.2 to Assign Similar
Case to a Single District Court Judge (“Motion”), filed May 8,
2013.

[Dkt. no. 18.]

Defendants the Law Office of David B.

Rosen, a Law Corporation, and David B. Rosen (“the Rosen
Defendants”) filed a statement of position on May 8, 2013.
no. 19.]

[Dkt.

Plaintiffs David Emory Bald and Emily Lelis,

individually and on behalf of all others similarly situated
(“Plaintiffs”), filed their memorandum in opposition on May 20,
2013, and Wells Fargo filed its reply on May 28, 2013.

[Dkt.

nos. 28, 30.]

The Court finds this matter suitable for

disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).

After careful

consideration of the Motion, supporting and opposing memoranda,
and the relevant legal authority, Wells Fargo’s Motion is HEREBY
GRANTED for the reasons set forth below.
BACKGROUND
Plaintiffs filed this purported class action on
September 7, 2012 in state court.

[Notice of Removal, filed

3/20/13 (dkt. no. 1), Exh. 3 (Complaint).]

Plaintiffs state that

they bring this action on behalf of a class consisting of
themselves and all similarly situated
“consumers” within the meaning of H.R.S. Chapter
480 who owned real property in the State of Hawaii
and who were subjected to a notice of non-judicial
foreclosure sale under H.R.S. §§ 667-5 et seq. by
or on behalf of Defendant WELLS FARGO, claiming
the rights of a foreclosing mortgagee with a power
of sale, whose property was sold on or after July
23, 2008, and, with respect to the notice of sale,
Defendant WELLS FARGO:
(a) advertised that, as part of the terms of
sale, the foreclosing mortgagee would convey the
foreclosed property to the high bidder at the
public auction through a “quitclaim” conveyance
and/or without any covenants or warranties of
title; and
(b) caused the sale or transfer of the
foreclosed property as a proximate result of the
notice of sale.
[Id. at ¶ 12.]

The class includes a subclass of class members
2

“whose non-judicial auction sale was not held at a date and time
specified in any published notice.”

[Id. at ¶ 13.]

Plaintiffs

allege that the class consists of over 500 property owners whose
property was subjected to a non-judicial foreclosure process by
or on behalf of Wells Fargo.

Further, Plaintiffs allege that

Wells Fargo wrongfully exercised its power of sale in those
foreclosures.

[Id. at ¶¶ 11, 15.]

Plaintiffs allege that Wells

Fargo and the Rosen Defendants: violated Haw. Rev. Stat. § 667-5;
committed unfair and deceptive acts or practices within the
meaning of Haw. Rev. Stat Chapter 480; and breached the class
members’ mortgage contracts.
Wells Fargo removed this action on March 20, 2013
pursuant to the Class Action Fairness Act, 28 U.S.C.
§ 1332(d)(2).

[Notice of Removal at ¶ 11.]

The Rosen Defendants

filed a motion to dismiss on March 21, 2013, and Wells Fargo
filed a motion to dismiss on March 27, 2013.

[Dkt. nos. 5, 8.]

In the instant Motion, Wells Fargo asks that this case
be reassigned to Chief United States District Judge Susan Oki
Mollway and United States Magistrate Judge Richard L. Puglisi
because, at the time Wells Fargo filed the Motion, they were
presiding over two substantively identical cases - Gibo v. U.S.
Bank National Ass’n, et al., CV 12-00514 SOM-RLP, and Lima v.
Deutsche Bank National Trust Co., et al., CV 12-00509 SOM-RLP.
The Rosen Defendants state that they do not believe reassignment

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is necessary, but they do not oppose the Motion, as long as this
Court does not alter the briefing schedule on the Rosen
Defendants’ motion to dismiss.1

Plaintiffs oppose reassignment.

DISCUSSION
Wells Fargo seeks reassignment of the instant case to
Chief Judge Mollway and Magistrate Judge Puglisi pursuant to
Local Rule 40.2, which provides, in pertinent part:
Whenever it shall appear that civil actions or
proceedings involve the same or substantially
identical transactions, happenings, or events, or
the same or substantially the same parties or
property or subject matter, or the same or
substantially identical questions of law, or for
any other reason said cases could be more
expeditiously handled if they were all heard by
the same judge, then the chief district judge or
any other district judge appointed by the chief
district judge in charge of the assignment of
cases may assign such cases to the same judge.
Each party appearing in any such action may also
request by appropriate motion that said cases be
assigned or reassigned to the same judge.
This Court emphasizes that reassignment pursuant to Local Rule
40.2 presents an even less rigorous standard than consolidation
pursuant to Fed. R. Civ. P. 42(a).

See, e.g., Matubang v. City &

Cnty. of Honolulu, Civil Nos. 09–00130 ACK–KSC, 2010 WL 1850184,

1

The Rosen Defendants’ motion to dismiss and Wells Fargo’s
motion to dismiss were originally set for hearing before this
Court on June 3, 2013. Plaintiffs filed a memorandum in
opposition to each motion on May 13, 2013. [Dkt. nos. 23, 24.]
The Rosen Defendants and Wells Fargo filed their respective
replies on May 20, 2013. [Dkt. nos. 26, 27.] On May 21, 2013,
this Court vacated the hearing on the motions to dismiss pending
its ruling on the instant Motion. [Dkt. no. 29.]
4

at *18 (D. Hawai`i May 7, 2010) (noting that: trial courts have
broad discretion in deciding a motion to consolidate;
consolidation is typically favored; and the trial court “weighs
the saving of time and effort consolidation would produce against
any inconvenience, delay, or expense that it would cause” (citing
Huene v. United States, 743 F.2d 703, 703 (9th Cir. 1984))).
Thus, in considering the instant Motion, this Court declines to
consider whether any party has engaged in gamesmanship or judge
shopping or whether potentially conflicting decisions in these
cases could be beneficial to the bar and the public in general.
Having reviewed the relevant pleadings, this Court
finds that the instant case addresses the same or substantially
identical transactions, happenings, or events as those addressed
in Lima and Gibo, and this Court further finds that the instant
case raises the same or substantially identical questions of law
raised in Lima and Gibo.

The purported class in Lima was

substantially identical to the purported class in the instant
case:
All consumers within the meaning of H.R.S. Chapter
480 who owned real property in Hawaii and who were
subjected to a notice of foreclosure sale under
H.R.S. § 667-5 by or on behalf of DEUTSCHE BANK
claiming the rights of a mortgagee with a power of
sale wherein the notice of sale was published on
or after June 4, 2008, and with respect to said
notice of sale DEUTSCHE BANK:
(a)

advertised the sale as being the sale of a
quitclaim deed or equivalent; and

5

(b)

caused the sale or transfer of the property
as a proximate result of the notice of sale.

[Lima, CV 12-00509 SOM-RLP, First Amended Complaint at ¶ 10.2]
The First Amended Complaint in Gibo contained a virtually
identical definition of the purported class.
SOM-RLP, First Amended Complaint at ¶ 10.3]

[Gibo, CV 12-00514
Lima and Gibo each

had the same purported subclass as in the instant case.

[Lima,

First Amended Complaint at ¶ 11; Gibo, First Amended Complaint at
¶ 11.]
Further, the questions of law and fact common to the
plaintiffs and the purported classes in Lima and Gibo were
virtually identical to the questions of law and fact common to
Plaintiffs and the purported class in the instant case.

Compare

Complaint at ¶ 17, with Lima First Amended Complaint at ¶ 15, and
Gibo First Amended Complaint at ¶ 15.
In a joint order granting Deutsche Bank National Trust
Company’s motion to dismiss in Lima and U.S. Bank National
Association’s motion to dismiss in Gibo, Chief Judge Mollway

2

The Notice of Removal in Lima, filed in this district
court on September 10, 2012, is attached to the instant Motion as
Exhibit 3 to the Declaration of J. Blaine Rogers (“Rogers
Declaration”), and the Lima First Amended Complaint, filed in the
state court on September 10, 2012, is Exhibit B to the Notice of
Removal. [Dkt. no. 18-5 at 33-53.]
3

The Notice of Removal in Gibo, filed in this district
court on September 12, 2012, is attached to the instant Motion as
Exhibit 5 to the Rogers Declaration, and the Gibo First Amended
Complaint, filed in the state court on September 6, 2012, is
Exhibit A to the Notice of Removal. [Dkt. no. 18-7 at 35-55.]
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stated that the two cases “raise[d] nearly identical issues” and
that she considered the two motions together “in the interest of
efficiency.”

Lima v. Deutsche Bank Nat’l Trust Co., Civil Nos.

12–00509 SOM/RLP, 2013 WL 1856255, at *1 (D. Hawai`i Apr. 30,
2013).

Similarly, the instant case raises nearly identical

issues to those raised in Lima and Gibo, and it would be in the
interests of efficiency for the same district judge and
magistrate judge who presided over Lima and Gibo to preside over
the instant case.
longer pending.

It is irrelevant that Lima and Gibo are no

[Lima, CV 12-00509 SOM-RLP, Judgment, filed

5/23/13 (dkt. no. 85); Gibo, CV 12-00514 SOM-RLP, Judgment, filed
5/23/13 (dkt. no. 104).]

This Court finds that Chief Judge

Mollway and Magistrate Judge Puglisi could handle the instant
case more expeditiously than other judges because of their
previous experience with Lima and Gibo.

This Court therefore

FINDS that reassignment is appropriate pursuant to Local Rule
40.2.
CONCLUSION
On the basis of the foregoing, Wells Fargo’s Ex Parte
Motion under L.R. 40.2 to Assign Similar Case to a Single
District Court Judge, filed May 8, 2013, is HEREBY GRANTED.

The

Court DIRECTS the Clerk’s Office to reassign this case, including
all pending motions in the instant case, to Chief United States
District Judge Susan Oki Mollway and United States Magistrate

7

Judge Richard L. Puglisi.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 5, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

DAVID EMORY BALD, ET AL. V. WELLS FARGO BANK, N.A., ET AL; CIVIL
NO. 13-00135 LEK-KSC; ORDER GRANTING DEFENDANT WELLS FARGO BANK,
N.A.’S EX PARTE MOTION UNDER L.R. 40.2 TO ASSIGN SIMILAR CASE TO
A SINGLE DISTRICT COURT JUDGE

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