Breinholt et al v. Popular Warehouse Lender et al

Filing 64

MEMORANDUM DECISION AND ORDER denying 56 Motion for Hearing to Determine the Court's Jurisdiction; denying without prejudice 58 Motion for Attorney Fees and Motion for Entry of Judgment; Defendant Transnations Renewed Motion for Attorney Fees (see Dkts. 47, 57) is DENIED WITHOUT PREJUDICE.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
RICHARD W. BREINHOLT AND
SUSAN L. BREINHOLT,
Plaintiffs,
v.
POPULAR WAREHOUSE LENDER;
TITLE ONE CORP d.b.a. PRIORITY
FINANCIAL INC dba PRIORITY
FUNDING, TRANSNATION TITLE &
ESCROW; ONEWEST BANK;
INDYMAC FEDERAL BANK;
MORTGAGE ELECTRONIC
REGISTRATION SERVICES (MERS);
TRI-COUNTY PROCESS SERVING;
PIONEER LENDER TRUSTEE
SERVICES LLC dba; REGIONAL
TRUSTEES SERVICES CORP; ADA
COUNTY SHERIFF, and Deputies;
TONYA REEVES, escrow officer,
Fidelity National Title Company of
Idaho; PETER FROST, Indymac Federal
Bank, Loss, Mitigation; EDWARD
CHOI, Regional Trustee Services;
ERICA JOHNSON-SECK, vice
president; OneWest Bank; BECKY
NORTH, vice president MERS and
INDYMAC FEDERAL BANK;
UNKNOWN 1-TO-20 JOHN&JANE
DOES,
Defendants.

MEMORANDUM DECISION AND ORDER - 1

Case No. 10-cv-00587-EJL
MEMORANDUM DECISION AND
ORDER

INTRODUCTION
The Court has before it plaintiffs’ “Verified Motion for Hearing to Determine the
Court’s Jurisdiction Pursuant to FRCP 60(b)(2)(3)(6).” See Dkt. 56.1 Additionally,
defendants Tri-County Process Serving LLC and Transnation Title & Escrow have
renewed their previously filed motions for attorneys’ fees, which this Court denied
without prejudice. See Dkts. 58, 59. For the reasons explained below, the Court will
deny all pending motions.
PLAINTIFFS’ MOTION FOR RULE 60(b) RELIEF
In February 2011, this Court dismissed nearly all the defendants from this action.
See Feb. 18, 2011 Order, Dkt. 46, at 11.2 Plaintiffs seek relief from this Court’s dismissal
order under Federal Rule of Civil Procedure 60(b).
Rule 60(b) allows a court to relieve a party from a final judgment, order or
proceeding for various reasons, including the following:


newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under
Rule 59(b);



fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;



any other reason that justifies relief.

Plaintiffs, who represent themselves in this action, also filed a “Response to Defendants
Transnation Motion to Dismiss.” Dkt. 62. The Court treated this document as a memorandum
supporting plaintiff’s motion, and considered it in issuing this ruling.
1

The only defendants not dismissed are those identified in the caption as “Ada County
Sheriff, and Deputies.” Pursuant to Local Rule 41.1, the Court has notified plaintiffs that these
defendants will be dismissed within 15 days based upon plaintiffs’ failure to prosecute these
defendants and for failing to show proper service. See Notice of Dismissal, entered concurrently
with this Order.
2

MEMORANDUM DECISION AND ORDER - 2

Fed. R. Civ. P. 60(b)(2), (3), and (6). Plaintiffs say they are entitled to Rule 60(b) relief
for all these reasons, yet they have not specifically explained why this is so. Instead, they
focus almost exclusively on their argument that the defendants wrongfully initiated
foreclosure proceedings. Plaintiffs’ ultimate goal is for this Court to conduct a hearing
and require the defendants to prove who, if anyone, has the right to foreclose.
Plaintiffs’ arguments are deficient for at least two reasons. First, they are not
tethered to Rule 60(b). Second, they are foreclosed by the doctrine of res judicata. The
Court previously dismissed all of Breinholt’s claims under this doctrine because
plaintiffs’ claims have already been litigated in state court. The Breinholts cannot seek a
different result here.
Plaintiffs have put forth two exhibits that post-date the state court foreclosure
proceedings. See Exhibits A and B to Breinholt Aff., Dkt. 56-2, 56-3. These documents,
however, are not the type of newly discovered evidence that suffices to upset the Court’s
previous dismissal order. Among other things, the exhibits have no bearing on the res
judicata concerns that prompted dismissal of the Breinholt’s action. Broadly speaking,
plaintiffs offer these documents to support their argument that their property cannot be
foreclosed upon. Again, this argument was litigated in state court, and cannot be relitigated here. In sum, plaintiffs’ request for Rule 60(b) relief lacks merit and will be
denied.

MEMORANDUM DECISION AND ORDER - 3

MOTION FOR ATTORNEYS’ FEES AND ENTRY OF JUDGMENT
The Court will not direct entry of judgment at this time, however, because the case
has not yet been dismissed as to the “Ada County Sheriff, and Deputies.” Federal Rule of
Civil Procedure 54(b) permits entry of a separate judgment in these situations, but only
upon the Court’s express determination “that there is no just reason for delay.” Fed. R.
Civ. P. 54(b). Here, the Court is concerned that if it enters a separate judgment now, the
appellate court might be burdened with separate appeals. The better course is to enter
judgment only when this case is over as to all defendants
The Court will deny defendants Tri-County and Transnation’s renewed attorneys’
fee motions without prejudice. Tri-County and Transnation originally filed these motions
shortly after the Court granted their motions to dismiss. See Dkts. 47, 51. The Court
denied these motions without prejudice. The Court expressly warned plaintiffs that if
they caused Tri-County or Transnation to incur “further attorneys’ fees in this action,”
through frivolous filings, the Court would grant Transnation and Tri-County leave to file
“second motions for attorneys fees.” Dec. 6, 2011 Order, Dkt. 55, at 2-3 (emphasis
added).
The Court was concerned with precisely what happened here – that plaintiffs might
cause these defendants to incur additional fees in the future. But the motions before the
Court do not show what additional, post-dismissal fees have been incurred. Instead, these
defendants just pointed to pre-dismissal fees. The Court will therefore deny the motions,
although it will again do so without prejudice. Tri-County and Transnation may re-file

MEMORANDUM DECISION AND ORDER - 4

their attorneys’ fees motions, but they should support them with affidavits showing what
fees were incurred after dismissal, in connection with plaintiffs’ Rule 60(b) motion.
ORDER
1. Plaintiffs’ “Verified Motion for Hearing to Determine the Court’s Jurisdiction
Pursuant to FRCP 60(b)(2)(3)(6)” (Dkt. 56) is DENIED.
2. Defendant Tri-County’s Renewed Motion for Attorneys’ Fees and Motion for
Entry of Judgment (Dkt. 58) is DENIED WITHOUT PREJUDICE.
3. Defendant Transnation’s Renewed Motion for Attorney’ Fees (see Dkts. 47,
57) is DENIED WITHOUT PREJUDICE.

DATED: May 2, 2012

Honorable Edward J. Lodge
U. S. District Judge

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