The Bank of New York Mellon v. Perry et al

Filing 41

ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS AMENDED COUNTER-COMPLAINT WITH LEAVE TO AMEND re 23 - Signed by JUDGE DERRICK K. WATSON on 11/27/2017. "Defendants are granted limited leave to file an amended counterclaim in acc ordance with the terms of this order by no later than December 29, 2017." (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). Len C. Perry, Jr. and Nathan Jon Lewis served by first class mail to the addresses of record on November 27, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

THE BANK OF NEW YORK
MELLON FKA THE BANK OF NEW
YORK, AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF THE
CWMBS INC., CHL MORTGAGE
PASS-THROUGH TRUST 2006-OA5,
MORTGAGE PASS THROUGH
CERTIFICATES, SERIES 2006-OA5,
a Delaware corporation,

CIVIL NO. 17-00297 DKW-RLP

ORDER GRANTING PLAINTIFF’S
MOTION TO DISMISS AMENDED
COUNTER-COMPLAINT WITH
LEAVE TO AMEND

Plaintiff,
vs.
LEN C. PERRY JR., an individual;
NATHAN JON LEWIS, an individual;
and 3925 KAMEHAMEHA RD
PRINCEVILLE, HI 96722, LLC, a
Hawaii limited liability corporation,
Defendants.

INTRODUCTION
The Bank of New York Mellon (“BONY Mellon”), fka The Bank of New
York, seeks dismissal of the Amended Counter-Complaint filed by Defendants Len
C. Perry, Nathan J. Lewis, and 3925 Kamehameha Rd Princeville, HI 96722, LLC
(the “LLC”). Although not entirely clear, Defendants appear to allege

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counterclaims sounding in fraud, in response to Plaintiff’s attempt to set aside
certain false liens and other fraudulent documents recorded by Defendants relating
to real property on Kauai. Because it is difficult to discern any cognizable claims
for relief in the Amended Counter-Complaint, and any mention of statutory or
common law causes of action lack plausible, supporting factual allegations,
Plaintiff’s Motion to Dismiss is GRANTED. Defendants are permitted limited
leave to file a further amended counter-complaint in accordance with the terms of
this order, no later than December 29, 2017, with instructions below.
BACKGROUND
I.

Procedural Background
Plaintiff filed this action on June 21, 2017, seeking cancellation of certain

instruments based on Defendants’ alleged improper and fraudulent recordings in the
land records relating to Plaintiff’s title to real property, including deeds purporting to
convey title to Defendants. See Compl., Dkt. No. 1. It asserts claims against
Defendants for cancellation of instruments, quiet title, slander of title, unjust
enrichment, and declaratory judgment. Compl. ¶¶ 39–93. On August 2, 2017,
Defendant Nathan Jon Lewis, proceeding pro se, filed an Answer, in which Lewis
attempted to respond to the Complaint on behalf of all Defendants. 8/2/17 Answer,
Dkt. No. 17. Lewis purported to “act[] as Trustee for the Len C. Perry, Jr. account,”
as “the authorized Trustee [with] a Special Power of attorney over this matter to

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represent Len C. Perry, Jr. [] as his agent.” 8/2/17 Answer, ¶¶ A, K. Lewis also
avers that he is “the sole member of 3925 Kamehameha Rd Princeville HI 96722,
LLC.” Id. ¶ L.1 With their Answer, Defendants filed a “Counter Complaint”
against BONY Mellon, alleging violations of numerous federal and state statutes,
and seeking dismissal of the Complaint, summary judgment, and costs. 8/2/17
Counter-Complaint, Dkt. No. 17-1.
Defendants then filed their “Amended Counter-Complaint for Collusion,
Conspiracy and Fraudulent Misrepresentation” on August 21, 2017, again seeking
dismissal of Plaintiff’s Complaint, summary judgment in favor of Defendants, and
“full restitution of lien claim,” which in turn references UCC-1 financing statements
recorded by Defendants in the Hawaii Bureau of Conveyances.2 Dkt. No. 19.
According to Plaintiff, these UCC-1 statements falsely identified Plaintiff as a
debtor. See generally Compl. As best the Court can discern, Defendants assert

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In the Amended Counter-Complaint, Lewis claims to be the “Secured party creditor of, and [to]
have trademarked the name NATHAN JON LEWIS,” and to be “a trustee over the foreclosed
property located at 3925 Kamehameha Rd Princeville HI 96722.” Am. Counter-Compl. ¶¶ 11,
13.
2
A Uniform Commercial Code Financing Statement is a legal form that a creditor files to give
notice that the creditor has a security interest in the personal property of a debtor, and is generally
filed with a state agency where the debtor resides to “perfect” the creditor’s security interest in the
debtor’s property. See United States v. Halajian, 2014 WL 4968287, at *1 (E.D. Cal. Sept. 29,
2014) (“The filing of a UCC–1 Statement creates a lien against the debtor’s property and also
establishes priority in case of debtor default or bankruptcy. To file a UCC–1 Statement, a debt
must be owed to the filer and the debtor must authorize the filing of the UCC–1 Statement.”).
Courts in this circuit have routinely granted declaratory relief to expunge sham liens filed against
government officials. See, e.g., United States v. Marty, 2011 WL 4056091, at *8 (E.D. Cal.
Sept.12, 2011) (sham UCC Financing Statements filed against IRS and Department of Justice
officials held null, void, and of no legal effect).
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counterclaims based upon their claimed right to ownership of the subject property,
stemming from Plaintiff’s failure to respond to Defendant’s “Good Faith Tendered
Offer” to purchase the property. Am. Counter-Compl. ¶ 31. Defendants deemed
Plaintiff in default and indebted to Defendants by “Silent Acquiescence.” Am.
Counter-Compl. ¶ 32. To enforce their supposed debt, Defendants then
“foreclosed” on the property and claim that title was somehow transferred to them
during a purported non-judicial foreclosure proceeding because Perry “perfected a
lien on the mortgage,” and Plaintiff “forfeited the entirety based on tac [sic]
procurement and silent acquiescence.” Am. Counter-Compl. Ex. B at 7, Dkt. No
19-4. Defendants’ Bill of Particulars lists “recommended penalties” for nineteen
separate violations of the United States Code, including, for example: treason
($250,000); attempted slavery ($250,000); attempted genocide ($1,050,000);
misprision of felony ($500); attempted extortion ($5,000); perjury and suborning
perjury ($2,000 each); civil racketeering ($25,000); and criminal racketeering
($250,000). Am. Counter-Compl. Ex. A, Dkt. No. 19-2.
II.

Plaintiff’s Motion To Dismiss
BONY Mellon moves to dismiss the Amended Counter-Complaint because it

fails to state a claim for relief or, alternatively, it seeks a more definite statement
under Federal Rule of Civil Procedure 12(e). It argues that the Amended
Counter-Complaint fails to provide Plaintiff with notice of any legal claims, and

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instead, Defendants purport to bring causes of action for “Dismissal with Prejudice,”
“Summary Judgment,” and “Full Restitution of Lien Claim in Full,” none of which
are viable claims.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a
complaint that fails “to state a claim upon which relief can be granted.” Rule
12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). The Court may dismiss a complaint either because it lacks a cognizable
legal theory or because it lacks sufficient factual allegations to support a cognizable
legal theory. Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).
Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” 555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 570 (2007)). “[T]he tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions.”
Id. Accordingly, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550
U.S. at 555). Rather, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). Factual allegations that only permit the court to infer “the mere possibility of
misconduct” do not constitute a short and plain statement of the claim showing that
the pleader is entitled to relief as required by Rule 8(a)(2). Id. at 679.
Because Defendants are proceeding pro se, the Court liberally construes their
filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832
F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal
courts to liberally construe the ‘inartful pleading’ of pro se litigants.”) (citing Boag
v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The Court recognizes 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.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248
(9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).
DISCUSSION
Upon review of the Amended Counter-Complaint, the Court finds that, even
liberally construed, Defendants fail to state any basis for judicial relief against
BONY Mellon. Defendants’ pleading is largely incoherent, and to the extent the
Court can ascertain any claim, Defendants fail to provide sufficient factual content
to enable the Court to draw the reasonable inference that BONY Mellon is liable for
the misconduct alleged. In short, even accepting the truth of the limited, factual

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allegations, the Amended Counter-Complaint fails to state a claim to relief that is
plausible on its face. Plaintiff’s Motion is therefore granted with Defendants given
limited leave to amend, consistent with the instructions below.
I.

The Amended Counter-Complaint Fails To State A Claim
As detailed more fully below, the allegations in the Amended

Counter-Complaint are insufficient, consisting largely of conclusory statements,
without necessary factual support.3 Defendants specifically allege the following
scheme to defraud by BONY Mellon—
31.

The Counter Defendants did not send our Good Faith
Tendered Offer back and therefore used the benefit of the
instrument for their gain.

32.

Counter Defendants then accepted all of the other
correspondences without any kind of rebuttal, rejection or
any communication therefore acquiescence (Silent
Acquiescence).

33.

The Counter Defendants kept our Good Faith tendered
negotiable instruments without a proper transfer of
Property title in accordance with the law.

34.

The Counter Defendants used the benefit of our negotiable
instruments in a loan hypothecation scheme intended to
defraud the certificate holders of the securitization
mortgage pass-through trusts they represent.

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Beyond implausibility, several portions of the pleading are patently frivolous. For example,
Defendants’ nonsensical theories of collusion and conspiracy regarding (1) the “fictitious” use of
names by Plaintiff’s counsel, based on their use of middle initials, and (2) counsel’s alleged
certification failures under the “Foreign Agents Registration Act,” are wholly without merit. See
Am. Counter-Compl. ¶¶ 16–22.
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Am. Counter-Compl. ¶¶ 31-34.
The Amended Counter-Complaint suffers from several deficiencies. First,
the pleading (complete with voluminous exhibits) does not comply with Rule 8,
which mandates that a complaint include a “short and plain statement of the claim,”
Fed. R. Civ. P. 8(a)(2), and that “each allegation must be simple, concise, and
direct.” Fed. R. Civ. P. 8(d)(1). A complaint that is so confusing that its “‘true
substance, if any, is well disguised’” may be dismissed for failure to satisfy Rule 8.
Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008)
(quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969)); see also
McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996). Defendants do not
clearly identify in any coherent or meaningful manner the basis for their claims, nor
provide specific factual allegations to support their bare legal conclusions. Even
applying the most liberal pleading standard, the Court cannot discern the actual
conduct on which the majority of their purported claims are based.
Second, to the extent Lewis or Perry attempt to allege violations of federal
constitutional rights, each fails to state a Section 1983 claim.4 In order to state a

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Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance, regulation, custom, or
usage . . . subjects, or causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured by the Constitution
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claim under Section 1983, a plaintiff must allege: (1) that a right secured by the
Constitution or laws of the United States was violated, and (2) that the alleged
violation was committed by a person acting under color of law. West v. Atkins, 487
U.S. 42, 48 (1988). They allege neither.5 Although pro se pleadings are liberally
construed, a party must allege that he or she suffered a specific injury as a result of
specific conduct of a defendant and show an affirmative link between the injury and
the conduct of that defendant, which the instant pleading fails to do. See Rizzo v.
Goode, 423 U.S. 362, 371–72, 377 (1976). Accordingly, Defendants’
constitutional claims must be dismissed.
Third, no private right of action exists to enforce criminal statutes, and private
individuals have no authority to seek an indictment or to bring a civil action for
violations of the criminal code, including 18 U.S.C. §§ 241 and 242, or any of the
other criminal statutes itemized by Defendants. A civil action is not the proper
mechanism to allege the criminal conduct catalogued in Defendants’ Bill of
Particulars. See Kumar v. Naiman, 2016 WL 397596, at *2 (E.D. Cal. Feb. 2, 2016)

and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . .
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They do not specify any right that was allegedly violated, other than a general averment that
Plaintiff and its attorneys “intended to obstruct justice and deny us, the Counter Plaintiffs, our
lawful due processes under law,” and colluded “in an attempt to deprive us, the Counter Plaintiffs,
of our rights to life, liberty and the pursuit of happiness guaranteed to us as Nationals of the United
States of America.” Am. Counter-Compl. ¶¶ 19, 21. Defendants also fail to allege how, or even
if, Plaintiff acted under color of state law.
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(“[P]laintiffs, as private citizens, have no standing to prosecute criminal claims.”).
To be clear, the Court does not have jurisdiction to hear allegations of criminal
conduct that are brought by anyone other than the United States. See, e.g., United
States v. Nixon, 418 U.S. 683, 693 (1974) (noting that the executive branch has
exclusive authority to decide whether to prosecute a case). Defendants’ laundry list
of additional federal and state statutory violations fares no better.6
Finally, Defendants’ fraudulent misrepresentation claims are neither
adequately pled under Federal Rule of Civil Procedure 9(b) nor factually supported
by plausible averments. Defendants allege in conclusory fashion that—
A).

The Counter Defendant’s knowingly negotiated a debt
claim of the foreclosed property at 3925 Kamehameha Rd.
in Princeville Hawaii and still brought forth a claim
against us.

B).

Their complaint towards us is false.

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Defendants list several statutory causes of action throughout the body of the pleading or in various
exhibits, see Am. Counter-Compl. ¶¶ 35–41, Exs. A–D, but do not include them in the section
listing Causes of Action, or provide relevant factual details supporting the legal conclusions. For
example, Defendants entirely fail to state a claim under the False Claims Act, 31 U.S.C. § 3729 et
seq., based on their allegation that BONY Mellon “knowingly and intentionally filled [sic] a false
claim against us[,] this erroneous Complaint . . . is full of false accusations, lies and slanderous
insinuations tarnishing the names and reputations of two fine and law-abiding Nationals[.]” Am.
Counter-Compl. ¶ 35. Other claims are conclusorily alleged in the pleading, including references
to “R.I.C.O.” or “racketeering.” See Am. Counter-Compl. ¶ 37. However, “to prevail on a civil
RICO claim, a plaintiff must prove that the defendant engaged in (1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity and, additionally, must establish that (5) the
defendant caused injury to plaintiff’s business or property.” Chaset v. Fleer/Skybox Int’l, 300
F.3d 1083, 1086 (9th Cir. 2002) (citing 18 U.S.C. §§ 1962(c), 1964(c)). Defendants’ conclusory
allegations fall far short of meeting those standards. Moreover, they fail to state an affirmative
claim for relief against BONY Mellon under HRS Chapter 651C relating to fraudulent transfers.
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C).

The Counter Defendant’s knew that we negotiated the
instruments (of the property).

D).

Obviously the Counter Defendants are relying on their
false statements and actions.

E).

We did rely[] on the false representation that the Counter
Defendants claimed to have an interest in our Property.

F).

We Counter Plaintiffs have suffered harm as a result of the
Counter Defendant’s fraudulent misrepresentation.

Am. Counter-Compl. ¶ 25. Rule 9(b) requires that, when fraud or mistake is
alleged, “a party must state with particularity the circumstances constituting fraud or
mistake.” Fed.R.Civ.P. 9(b). An allegation of fraud is sufficient if it “identifies
the circumstances constituting fraud so that the defendant can prepare an adequate
answer from the allegations.” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir.
1993) (internal citations and quotations omitted). “Averments of fraud must be
accompanied by the who, what, when, where, and how of the misconduct charged.”
Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)). A plaintiff must also
explain why the alleged conduct or statements are fraudulent. In re GlenFed, Inc.
Sec. Litig., 42 F.3d 1541, 1548 n.7 (9th Cir. 1994) (en banc), superseded by statute
on other grounds by 15 U.S.C. § 78u-4. Defendants do not properly allege the
circumstances that constitute fraudulent conduct by BONY Mellon, such as the

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times, dates, places, or other details of the alleged fraudulent activity. Neubronner,
6 F.3d at 672. The legal conclusions provided are simply insufficient.
Fraud claims must additionally be pled consistent with state law. In
Hawai‘i—
Fraud and fraudulent misrepresentation share the same elements.
Compare Fisher v. Grove Farm Co., 123 Haw. 82, 103, 230 P.3d
382, 403 (Haw. Ct. App. 2009) (stating the elements of a fraud
claim) with Ass’n of Apartment Owners, 115 Haw. at 263, 167
P.3d at 256 (stating the elements of a fraudulent
misrepresentation claim). Like fraudulent misrepresentation,
the elements of fraud are “1) false representations made by the
defendant, 2) with knowledge of their falsity (or without
knowledge of their truth or falsity), 3) in contemplation of
plaintiff’s reliance upon them, and 4) plaintiff’s detrimental
reliance.” Fisher, 123 Haw. at 103, 230 P.3d at 403.
Prim Liab. Co. v. Pace-O-Matic, Inc., 2012 WL 263116, at *8 (D. Haw. Jan. 30,
2012). Defendants’ bare legal conclusions devoid of factual enhancement fall far
short of the particularity required by Rule 9(b) for averments of fraud, and,
moreover, fail to state a plausible claim for relief. Fraud claims, “in addition to
pleading with particularity, also must plead plausible allegations. That is, the
pleadings must state ‘enough fact[s] to raise a reasonable expectation that discovery
will reveal evidence of [the misconduct alleged].’” Cafasso ex rel. United States v.
Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 566 (2007)). Even assuming the truth of

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Defendants’ allegations, rather than their legal conclusions, the Amended
Counter-Complaint fails to state a claim for fraud.
For these reasons, Defendants fail to state a claim, and the Amended
Counter-Complaint is hereby DISMISSED. Because amendment may be possible
with respect to the claims sounding in fraud, Defendants are granted limited leave to
attempt to cure the deficiencies noted in this order.
II.

Representation Issues: Lewis May Not Represent Other Parties
The Court next addresses representation issues raised by Lewis, a

non-attorney appearing pro se, filing pleadings or other papers on behalf of Perry
and/or the LLC. Although “parties may plead and conduct their own cases
personally,” see 28 U.S.C. § 1654, “the right to proceed pro se in civil cases is a
personal right” and a person appearing pro se has no authority to represent others.
C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987); see also
Hou 1778 Hawaiians v. United States Dep’t of Justice, 2016 WL 335851, at *3 (D.
Haw. Jan. 27, 2016); Johns v. Cty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997)
(“While a non-attorney may appear pro se on his own behalf, he has no authority to
appear as an attorney for others than himself.”) (citations and quotation marks
omitted).
Lewis is cautioned that he may not represent Perry under a “Special Power of
Attorney,” or as his duly “authorized Trustee,” or “agent.” See In re Foster, 2012

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WL 6554718, *5 (9th Cir. B.A.P. Dec. 14, 2012); Barker v. JP Morgan Chase Bank,
2016 WL 9453816, at *1 (N.D. Ga. Mar. 25, 2016) (citation and quotation marks
omitted) (“[T]he existence of a power of attorney does not authorize a nonlawyer to
undertake to conduct legal proceedings on behalf of a pro se litigant where the law
otherwise requires that such proceedings be conducted by a licensed attorney.”);
Harris v. Philadelphia Police Dep’t, 2006 WL 3025882, *3 (E.D. Pa. 2006)
(“federal courts do not permit a non-attorney to engage in the unauthorized practice
of law by pursuing an action pro se with the plaintiff’s power of attorney”); Hale Joy
Tr. v. C.I.R., 57 F. App’x 323, 324 (9th Cir. 2003) (“A non-attorney trustee may not
represent a trust pro se in an Article III court.”). Perry may continue to represent
only himself in this matter, which he now appears to have undertaken.7
Nor may Lewis or Perry appear on behalf of the LLC. See Local Rule 83.11
(“[b]usiness entities, including but not limited to . . . limited liability corporations
. . . cannot appear before this court pro se and must be represented by an attorney”);
Rowland v. Cal. Men’s Colony, 506 U.S. 194, 201-02 (1993) (“It has been the law
for the better part of two centuries . . . that a corporation may appear in the federal

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On August 23, 2017, BONY Mellon filed a Motion to Strike Answer of Defendants Len C. Perry
and 3925 Kamehameha Rd Princeville, HI 96722, LLC (“Motion to Strike”) because, as a
non-attorney, Lewis is unable to represent Perry in this lawsuit or otherwise file documents on
Perry or the LLC’s behalf. Dkt. No. 20. On October 20, 2017, the Court granted BONY
Mellon’s Motion to Strike. Dkt. No. 33 (adopting Findings and Recommendation). On October
13, 2017, while that Motion to Strike was pending, Perry proceeded to file his own Answer. Dkt.
No. 30.
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courts only through licensed counsel.”); Taylor v. Knapp, 871 F.2d 803, 806 (9th
Cir. 1989) (“The general rule, widely recognized in federal and state courts, is that a
corporation can appear only through an attorney.”).
To be clear, Lewis, proceeding pro se, cannot represent Defendants Perry or
the LLC in this civil action.
III.

Defendants Are Granted Limited Leave To Amend
The Court GRANTS Defendants limited leave to file a further amended

counterclaim to attempt to cure the deficiencies noted herein, consistent with the
terms of this order, by December 29, 2017. If Defendants choose to file an
amended counterclaim, they are CAUTIONED that they must write short, plain
statements telling the Court: (1) the specific basis of this Court’s jurisdiction; (2) the
constitutional or statutory right Defendants believe was violated; (3) the name of the
party who violated that right; (4) exactly what that the other party did or failed to do;
(5) how the action or inaction of that party is connected to the violation of
Defendants’ rights; and (6) what specific injury each party suffered because of
another party’s conduct. Defendants must repeat this process for each person or
entity named. If Defendants fail to affirmatively link the conduct of each named
party with the specific injury suffered, the allegation against that party will be
dismissed for failure to state a claim.

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An amended pleading generally supersedes a prior complaint, and must be
complete in itself without reference to the prior superseded pleading. Defendants
need not re-allege any claims dismissed with prejudice, as these claims are preserved
for any future appeal. See Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir.
2012) (“[C]laims dismissed with prejudice [need not] . . . be repled in a[n] amended
complaint to preserve them for appeal.”).
The amended counterclaim must designate that it is the “Second Amended
Counterclaim” and may not incorporate any of the prior counter-complaints.
Rather, any specific allegations must be retyped or rewritten in their entirety.
Defendants may include only one claim per count.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Dismiss is GRANTED. Dkt.
No. 23. Defendants are granted limited leave to file an amended counterclaim in
accordance with the terms of this order by no later than December 29, 2017.
IT IS SO ORDERED.
DATED: November 27, 2017 at Honolulu, Hawai‘i.

The Bank of NY Mellon v. Perry et al., Civil No. 17-00297 DKW-RLP; ORDER GRANTING PLAINTIFF’S
MOTION TO DISMISS AMENDED COUNTER-COMPLAINT WITH LEAVE TO AMEND

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