Pascua v. Option One Mortgage Corporation et al

Filing 20

ORDER DENYING MOTION FOR PAYMENT OF COSTS OF PREVIOUSLY DISMISSED ACTION, STAY PENDING PAYMENT, AND DISMISSAL ABSENT PAYMENT BY COURT-IMPOSED DEADLINE re 11 , 14 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/20/2014. (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
ARSENIO AGUILAR PASCUA,

)
)
Plaintiff,
)
)
vs.
)
)
OPTION ONE MORTGAGE
)
CORPORATION, et al.
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 14-00248 SOM/KSC
ORDER DENYING MOTION FOR
PAYMENT OF COSTS OF
PREVIOUSLY DISMISSED ACTION,
STAY PENDING PAYMENT, AND
DISMISSAL ABSENT PAYMENT BY
COURT-IMPOSED DEADLINE

ORDER DENYING MOTION FOR PAYMENT OF COSTS
OF PREVIOUSLY DISMISSED ACTION, STAY PENDING PAYMENT,
AND DISMISSAL ABSENT PAYMENT BY COURT-IMPOSED DEADLINE
I.

INTRODUCTION.
Defendants Homeward Residential, Inc., Wells Fargo

Bank, National Association as Trustee for Soundview Home Loan
Trust 2007-OPT5, Asset-Backed Certificates, Series 2007-OPT5, and
Ocwen Loan Servicing, LLC (collectively, “Ocwen Defendants”),
move for: (1) payment of costs of a previously dismissed action;
(2) stay of this action pending payment; and (3) dismissal of
this action absent payment by a deadline set by the court.1
1

The

On August 4, 2014, Defendant Option One Mortgage
Corporation, now known as Sand Canyon Corporation (“Sand
Canyon”), filed a joinder in the Ocwen Defendants’ motion. See
ECF No. 14. Although Sand Canyon seeks a “substantive joinder,”
through which a party may seek for itself the same relief the
movant seeks, such a joinder is not available to Sand Canyon
because the request was not timely filed. Under Local Rule 7.9,
a substantive joinder must be filed within seven days of the
filing of the motion joined in. Because Sand Canyon failed to
meet this deadline, it may not substantively join in the Ocwen
Defendants’ motion. However, even assuming Sand Canyon’s
substantive joinder had been timely filed, Sand Canyon would not
be entitled to the relief sought for the same reasons that the

motion is denied.2
II.

FACTUAL BACKGROUND.
The Ocwen Defendants seek their costs from a previously

dismissed action, Pascua v. Option One Mortgage Corporation, Civ.
No. 13-00406 SOM/KSC (“Pascua I”).3

ECF No. 11-1, PageID # 159-

60.
On February 28, 2014, this court dismissed Plaintiff
Arsenio Aguilar Pascua’s Complaint in Pascua I for lack of
subject matter jurisdiction.

Pascua v. Option One Mortgage

Corporation, Civ. No. 13-00406 SOM/KSC, 2014 WL 806226 (D. Haw.
Feb. 28, 2014).

Plaintiff had previously voluntarily dismissed

Counts I and II of the Complaint, which asserted Fair Debt
Collections Practices Act (“FDCPA”) and Hawaii’s Unfair
Competition and Practices Act (“UDAP”) claims.

Id. at *1.

In

dismissing the Complaint for lack of subject matter jurisdiction,

court denies the Ocwen Defendants’ motion.
2

The court decides this matter without a hearing pursuant
to Local Rule 7.2(d).
3

Pascua I is one of several previously rejected actions
containing nearly identical allegations and claims filed by
Plaintiff’s counsel, Robert L. Stone of Property Rights Law Group
of Hawai’i, Inc. See Dimitrion v. Morgan Stanley Credit Corp.,
No. 13-00125 DKW/BMK, 2014 WL 2439631 (D. Haw. May 29, 2014);
Broyles v. Bank of Am., N.A., No. 13-00540 LEK/KSC, 2014 WL
1745097 (D. Haw. Apr. 30, 2014); Moore v. Deutsche Bank Nat.
Trust Co., No. 13-00506 DKW/RLP, 2014 WL 1745076 (D. Haw. Apr.
30, 2014); Wegesend v. Envision Lending Grp., Inc., No. 13-00493
DKW/KSC, 2014 WL 1745340 (D. Haw. Apr. 30, 2014); Dicion v. Mann
Mortgage, LLC, No. 13-00533 JMS/KSC, 2014 WL 1366151 (D. Haw.
Apr. 4, 2014).
2

the court had before it only Count III of the Complaint, a quiet
title claim.

Id.

On May 28, 2014, Plaintiff filed a Complaint in this
new action against the same parties he had sued in Pascua I.

See

ECF No. 1.
The Ocwen Defendants now seek $7,366.46 in fees and
costs incurred in Pascua I under Rule 41(d) of the Federal Rules
of Civil Procedure and this court’s inherent power.
1, PageID # 159.

ECF No. 11-

The Ocwen Defendants also seek a stay of this

action pending payment and dismissal should payment not occur by
a deadline imposed by this court.
III.

Id., PageID # 160.

ANALYSIS.
Rule 41(d) of the Federal Rules of Civil Procedure

states:
If a plaintiff who previously dismissed an
action in any court files an action based on
or including the same claim against the same
defendant, the court:
(1) may order the plaintiff to pay all
or part of the costs of that previous action;
and
(2) may stay the proceedings until the
plaintiff has complied.
As the Ocwen Defendants appear to acknowledge in their reply
memorandum, Rule 41(d) applies to actions that a plaintiff has
voluntarily dismissed.

See Hacopian v. U.S. Dep’t of Labor, 709

F.2d 1295, 1297 (9th Cir. 1983).

Because Pascua I was not

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voluntarily dismissed, the Ocwen Defendants do not fit into the
actual language of Rule 41(d).
This conclusion is unaffected by Plaintiff’s voluntary
dismissal of his FDCPA and UDAP claims in Pascua I prior to this
court’s February 28 order.

Rule 41(d) of the Federal Rules of

Civil Procedure, through use of both terms, appears to draw a
distinction between a “claim” and an “action.”

Rule 41(d)’s use

of the term “action” to describe what a plaintiff must have
“previously dismissed” indicates that voluntary dismissal of
some, but not all, claims prior to the involuntary dismissal of
an action does not qualify a defendant for payment of costs
incurred in that prior action pursuant to Rule 41(d).
In seeming recognition of the inapplicability of Rule
41(d), the Ocwen Defendants’ reply memorandum, citing Hacopian,
encourages this court to use its inherent power to condition
proceedings in this action on Plaintiff’s payment of costs from
Pascua I.

ECF No. 19, PageID # 309-10.

The court declines to

exercise its inherent power or its discretion in that manner.
The Ocwen Defendants could have pursued their Pascua I costs in
Pascua I itself.

The filing of this new action might justify a

request by Defendants for costs incurred in this action, but
their requests for Pascua I costs, for a stay pending payment,
and for dismissal of this new action absent payment are denied.

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IV.

CONCLUSION.
The court denies the Ocwen Defendants’ motion.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 20, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Pascua v. Option One Mortgage Corporation, et al., Civ. No. 14-00248 SOM/KSC;
ORDER DENYING MOTION FOR PAYMENT OF COSTS OF PREVIOUSLY DISMISSED ACTION, STAY
PENDING PAYMENT, AND DISMISSAL ABSENT PAYMENT BY COURT-IMPOSED DEADLINE

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