Pascua v. OneWest Bank, National Association

Filing 44

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT re 30 Motion to Dismiss for Failure to State a Claim. Signed by JUDGE LESLIE E. KOBAYASHI on 01/31/2017. There being no remaining claims in this case, this Court DIRECTS the Clerk's Office to close the instant case on February 27, 2017, unless Plaintiff files a motion for reconsideration of the instant Order by February 14, 2017. (eps, )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 served by first class mail on February 1, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MAGDALENA MARCOS PASCUA,
Plaintiff,
vs.
ONEWEST BANK, NATIONAL
ASSOCIATION,
Defendants.
_____________________________

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CIVIL 16-00016 LEK-KSC

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS OR,
IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT
On September 6, 2016, Defendant CIT Bank, N.A.,
formerly known as OneWest Bank N.A. (“Defendant”), filed its
Motion to Dismiss or, in the Alternative, for a More Definite
Statement (“Motion”).

[Dkt. no. 30.]

Pro se Plaintiff Magdalena

Marcos Pascua (“Plaintiff”) filed her memorandum in opposition on
September 19, 2016, and Defendant filed its reply on November 7,
2016.

[Dkt. nos. 36, 37.]

On November 7, 2016, this Court

issued an entering order (“EO”) finding 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”).

[Dkt. no. 38.]

On

December 7, 2016, Plaintiff filed a document that this Court
construed as an additional memorandum in opposition to the
Motion.

[Dkt. nos. 41 (Plaintiff’s document), 43 (EO construing

document).]

After careful consideration of the Motion,

supporting and opposing memoranda, and the relevant legal
authority, Defendant’s Motion is HEREBY GRANTED.

This Court must

DISMISS Plaintiff’s case WITH PREJUDICE because the pending state
court case regarding the same property at issue in this case has
priority.
BACKGROUND
On January 15, 2016, Plaintiff filed her Complaint
under 42 U.S.C. § 1981, Fifth, Ninth, and Fourteenth Amendment of
the U.S. Constitution and 18 U.S.C. § 1028 (“Complaint”).

The

Complaint alleges that Defendant has filed an action in state
court to foreclose on Plaintiff’s home (“Foreclosure Action”).
According to the Complaint, the borrower on the loan that
Defendant is trying to foreclose was Plaintiff’s brother,
Napoleon J. Marcos (“Marcos”).

Plaintiff alleges that she

purchased the house from Marcos for $200,000, but he subsequently
obtained loans from Defendant totaling over $500,000 using
Plaintiff’s home as collateral.

He used the proceeds from the

loan to flee to the Phillippines.
unknown.

His whereabouts are currently

[Complaint at ¶¶ 3-5, 7.]

Plaintiff alleges that

Defendant has attempted a wrongful foreclosure because: the
property is in her name, not Marcos’s; she never obtained a loan
from, or entered into a contract with, Defendant; she has never
been a customer of Defendant’s; and Defendant is attempting to
collect Marcos’s debt from her under the guise of a foreclosure.

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[Id. at ¶¶ 3, 6, 8-9.]
The Complaint alleges the following claims: violation
of Plaintiff’s “federal constitutional rights to property”
(“Count I”); [id. at ¶ 13;] and an unspecified claim alleging
that Defendant’s actions caused Plaintiff to suffer “mental
anguish, emotional disturbance, stresses” and caused her to incur
damages, including incurring legal fees (“Count II”) [id. at
¶ 14].

Plaintiff prays for the following relief: $500,000 in

compensatory damages; $500,000 in punitive damages; an injunction
precluding Defendant from pursing the Foreclosure Action in state
court; attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988;
and any other appropriate relief.

[Id. at pg. 1 & ¶¶ 15-19.]

In the instant Motion, Defendant urges this Court to
dismiss the Complaint: 1) based on the prior exclusive
jurisdiction doctrine; 2) based on the Colorado River abstension
doctrine;1 or 3) because both Counts I and II fail to state any
cognizable claims.

In the alternative, Defendant argues that

this Court should order Plaintiff to file a more definite
statement, pursuant to Fed. R. Civ. P. 12(e).

1

See Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 818 (1976).
3

DISCUSSION
I.

Request for Judicial Notice
Defendant filed a Request for Judicial Notice (“RJN”)

on September 6, 2016, and an errata to the RJN on December 19,
2016.

[Dkt. no. 31.]

Defendant asks this Court to take judicial

notice of the Complaint for Foreclosure (“Foreclosure Complaint”)
in the Foreclosure Action – Onewest Bank, FSB v. Napoleon Javier
Marcos, et al., Civil No. 13-1-0439-02 – filed in the State of
Hawai`i First Circuit Court on February 14, 2013.

[RJN, Exh. A

(Foreclosure Complaint).]
A court “must take judicial notice if a party requests
it and the court is supplied with the necessary information.”
Fed. R. Evid. 201(c)(2).

“The court may judicially notice a fact

that is not subject to reasonable dispute because it . . . can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”

Rule 201(b)(2).

This district

court has stated:
[T]he court may not take judicial notice of a
matter of public record in order to consider “the
truth of the facts recited therein.” See [Lee v.
City of Los Angeles, 250 F.3d 668,] 690 [(9th Cir.
2001).2] The court may only take judicial notice
of the existence of the matter. See id. (citing
S. Cross Overseas Agencies, Inc. v. Wah Kwong
Shipping Grp. Ltd., 181 F.3d 410, 426-27 (3d Cir.
1999)).
2

Lee has been impliedly overruled on other grounds, as
stated in Galbraith v. County of Santa Clara, 307 F.3d 1119,
1125–26 (9th Cir. 2002).
4

Matters of public record that may be
judicially noticed include . . . documents filed
with courts, “both within and without the federal
judicial system, if those proceedings have a
direct relation to the matters at issue.” United
States v. Borneo, Inc., 971 F.2d 244, 248 (9th
Cir. 1992). . . .
Bartolotti v. Maui Mem’l Med. Ctr., Civil No. 14-00549 SOM/KSC,
2015 WL 4545818, at *3 (D. Hawai`i July 28, 2015).

This Court

therefore GRANTS Defendant’s RJN insofar as this Court takes
judicial notice of the filing of the Foreclosure Complaint, but
not the truth of the facts recited therein.

This Court also

takes judicial notice of the proceedings in the Foreclosure
Action.

See Rule 201(c)(1) (court may take judicial notice sua

sponte).
II.

Prior Exclusive Jurisdiction Doctrine
Defendant first argues that this Court should dismiss

Plaintiff’s Complaint pursuant to the prior exclusive
jurisdiction.

The Ninth Circuit has stated:

Under the Supreme Court’s long-standing prior
exclusive jurisdiction doctrine, if a state or
federal court “‘has taken possession of property,
or by its procedure has obtained jurisdiction over
the same,’” then the property under that court’s
jurisdiction “‘is withdrawn from the jurisdiction
of the courts of the other authority as
effectually as if the property had been entirely
removed to the territory of another sovereign.’”
State Engineer v. S. Fork Band of Te–Moak Tribe of
W. Shoshone Indians, 339 F.3d 804, 809 (9th Cir.
2003) (emphasis omitted) (quoting Palmer v. Texas,
212 U.S. 118, 125, 29 S. Ct. 230, 53 L. Ed. 435
(1909)). That is, when “one court is exercising
in rem jurisdiction over a res, a second court
will not assume in rem jurisdiction over the same
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res.” Chapman [v. Deutsche Bank Nat’l Trust Co.],
651 F.3d [1039,] 1043 [(9th Cir. 2011) (per
curiam)] (internal quotation marks omitted). As
we have explained, “[t]he purpose of the rule is
the maintenance of comity between courts; such
harmony is especially compromised by state and
federal judicial systems attempting to assert
concurrent control over the res upon which
jurisdiction of each depends.” United States v.
One 1985 Cadillac Seville, 866 F.2d 1142, 1145
(9th Cir. 1989) (citing Penn Gen. Cas. Co. v.
Pennsylvania ex rel. Schnader, 294 U.S. 189, 195,
55 S. Ct. 386, 79 L. Ed. 850 (1935)).
Sexton v. NDEX W., LLC, 713 F.3d 533, 536 (9th Cir. 2013)
(footnotes omitted).

“[W]hen property is the main subject of a

lawsuit, a court’s exercise of jurisdiction over the property in
that lawsuit may be termed ‘in rem’ jurisdiction, and the
property at issue may be termed the ‘res.’”

Id. at 536 n.4

(citing Black’s Law Dictionary 864, 1420 (9th ed. 2009) (in
Latin, “in rem” means “against a thing,” and “res” means
“thing”)).
The Ninth Circuit has clarified that, although it has
previously “described the prior exclusive jurisdiction rule as
both a ‘rule of comity’ and as a rule of subject-matter
jurisdiction,” id. at 536 n.5 (quoting Chapman, 651 F.3d at
1044), it is “a prudential (although mandatory) common law rule
of judicial abstention.”

Id. (citations omitted).

words, the doctrine is not jurisdictional.

In other

Chapman v. Deutsche

Bank Nat. Trust Co., 649 F. App’x 638, 639 (9th Cir. 2016)
(citing Sexton v. NDEX West, LLC, 713 F.3d 533, 536 n.5 (9th Cir.

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2013)).
To determine whether prior exclusive jurisdiction
applies, the Court first must evaluate the
priority of the actions. In [Chapman v. Deutsche
Bank Nat’l Trust Co. (“]Chapman I[”)], the Ninth
Circuit determined priority by comparing the
filing date of the concurrent unlawful detainer
action with the date when the notice of removal
was filed in the federal quiet title action.
Chapman I, 651 F.3d at 1044. Because the unlawful
detainer case was filed in state court before the
notice of removal was filed with the federal
court, the unlawful detainer action had priority.
Id. at 1045. . . .
The second issue the Court must determine is
how to characterize the concurrent actions. If
both of the pending actions are in rem or quasi in
rem, the prior exclusive jurisdiction doctrine
applies. . . .
Gustafson v. Bank of Am., N.A., Case No. 16cv1733 BTM(KSC), 2016
WL 7438326, at *6 (S.D. Cal. Dec. 27, 2016).

This district court

has stated that:
“Quasi in rem jurisdiction differs from in rem
jurisdiction only in that in rem jurisdiction
affects the interests of all persons in a
designated property, whereas quasi in rem
jurisdiction affects the interests of particular
persons.” Hanover Ins. Co. v. Fremont Bank,
No. C–14–01519 DMR, ––– F. Supp. 3d ––––, 2014 WL
4744398, at *14 n.19 (N.D. Cal. Sept. 22, 2014)
(citing Hanson v. Denckla, 357 U.S. 235, 246 n.12
(1958)). On the other hand, an action in personam
is “[i]nvolving or determining the personal rights
and obligations of the parties” or is “brought
against a person rather than property.” Id.
U.S. Bank Nat. Ass’n v. Martin, Civil No. 15–00061 DKW–BMK, 2015
WL 2227792, at *7 n.3 (D. Hawai`i Apr. 23, 2015) (alteration in
Martin), report and recommendation adopted, 2015 WL 2234320

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(May 12, 2015).
In the instant case, the Foreclosure Action was filed
over three years before this case.

Further, based on the docket

sheet for the Foreclosure Action – available on the State of
Hawai`i Judiciary’s hoohiki.courts.hawaii.gov website – the
Foreclosure Action is still pending.
defendants in the Foreclosure Action.

Plaintiff is among the
The Foreclosure Action

therefore has priority and, if both pending actions are in rem or
quasi in rem, the prior exclusive jurisdiction doctrine applies.
Under Hawai`i law, the Foreclosure Action is an in rem
proceeding.

Cf. Serion v. Thornton, 104 Hawai`i 79, 86, 85 P.3d

186, 193 (Ct. App. 2004) (“[T]ax sale foreclosures are in rem
proceedings that are based on jurisdiction over the property
involved, rather than jurisdiction over the taxpayer.” (citing
Richard R. Powell, 5 Powell on Real Property § 39.04[4] at 39–51
(2000))).

The characterization of Plaintiff’s claims in the

instant case:
is based not on its form but on the gravamen of
the complaint. Chapman I, 651 F.3d at 1044. “We
reject the suggestion that where a merits claim
and a declaratory relief claim are combined in one
action a different abstention inquiry is required
for each claim. Such a rule would increase, not
decrease, the likelihood of piecemeal adjudication
or duplicative litigation . . . .” 40235
Washington Street Corp. v. Lusardi, 976 F.2d 587,
589 (9th Cir. 1992) (per curiam); see also Azucena
v. Aztec Foreclosure Corp., 536 Fed. Appx. 759,
760 (9th Cir. 2013) (“Although Azucena’s complaint
alleges three claims, her quiet title action is
the gravamen of her complaint. The nature of her
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claim does not change because she requests
monetary damages in addition to the central relief
— quiet title — she requests.”).
See Gustafson, 2016 WL 7438326, at *6.

Although Plaintiff

alleges constitutional violations and infliction of emotional
distress, the gravamen of her Complaint is that she is
challenging Defendant’s ability to bring the Foreclosure Action.
This Court therefore CONCLUDES that the instant case is an in rem
– or at least a quasi in rem – action.
Because both actions are either in rem or quasi in rem,
the prior exclusive jurisdiction rule applies.

This Court

CONCLUDES that Plaintiff’s Complaint fails to state a claim upon
which relief can be granted.

See Fed. R. Civ. P. 12(b)(6).3

The

Ninth Circuit has stated that, “[u]nless it is absolutely clear
that no amendment can cure the defect . . . a pro se litigant is
entitled to notice of the complaint’s deficiencies and an
opportunity to amend prior to dismissal of the action.”
Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995).

Lucas v.

Because this

Court CONCLUDES that it is absolutely clear that no amendment can
cure the defect in the instant case, this Court GRANTS the Motion
and DISMISSES Plaintiff’s Complaint WITH PREJUDICE.4

In other

3

Fed. R. Civ. P. 12(b) states, in pertinent part, that “a
party may assert the following defenses by motion: . . .
(6) failure to state a claim upon which relief can be granted.”
4

In light of this Court’s ruling, it is not necessary to
address Plaintiff’s other arguments. This Court emphasizes that
(continued...)
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words, Plaintiff cannot file an amended complaint in this case.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion to
Dismiss or, in the Alternative, for a More Definite Statement,
filed September 6, 2016, is HEREBY GRANTED, insofar as
Plaintiff’s Complaint under 42 U.S.C. § 1981, Fifth, Ninth, and
Fourteenth Amendment of the U.S. Constitution and 18 U.S.C.
§ 1028, filed on January 15, 2016, is HEREBY DISMISSED WITH
PREJUDICE, pursuant to the prior exclusive jurisdiction doctrine.
There being no remaining claims in this case, this Court DIRECTS
the Clerk’s Office to close the instant case on February 27,
2017, unless Plaintiff files a motion for reconsideration of the
instant Order by February 14, 2017.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 31, 2017.

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

MAGDALENA MARCOS PASCUA VS. ONEWEST BANK NATIONAL ASSOCIATION;
CIVIL 16-00016 LEK-KJM; ORDER GRANTING DEFENDANT’S MOTION TO
DISMISS OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT
4

(...continued)
the dismissal of Plaintiff’s Complaint is based on the prudential
prior exclusive jurisdiction doctrine, and this Court makes no
findings or conclusions about the merits of Plaintiff’s claims.
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