Reed v. Bank of America Corporation et al

Filing 18

ORDER finding as moot 8 Motion to Dismiss; granting 9 Motion to Take Judicial Notice; granting 13 Motion for Leave to File. The hearing scheduled for 7/25/2011 is vacated. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO DOUGLAS REED, Case No. 1:11-CV-00124-BLW Plaintiff, ORDER v. BANK OF AMERICA CORPORATION; BAC LOAN SERVICING, LP; FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants. The Court has before it the Defendants’ motions to dismiss (Dkt. 8) and for judicial notice (Dkt. 9), and Plaintiff’s motion for leave to amend his complaint (Dkt. 13). The motions for judicial notice and to amend the complaint are unopposed. Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend shall be freely granted “when justice so requires.” Leave may be denied for reasons such as undue delay, bad faith, futility of amendment, or prejudice to the opposing party. Hurn v. Retirement Fund Trust, 648 F.2d 1252, 1254 (9th Cir. 1981). The Court finds that none of these reasons are present in this case; accordingly, leave to amend is granted. In turn, the Court finds that leave to amend moots the Defendants’ pending motion to dismiss because it addresses the original complaint. Defendants may file another M EMORANDUM D ECISION AND O RDER - 1 motion to dismiss if necessary, but it should address the amended complaint. In their motion for judicial notice, the Defendants ask the court to take notice of three documents relevant to this case: (1) the deed of trust, (2) the trustee’s deed, and (3) the promissory note. The deed of trust and trustee’s deed have been recorded in the public records of Ada County; the promissory note is signed by Mr. Reed and its veracity is not disputed. As a general rule, “a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, under Federal Rule of Evidence 201, a court may take judicial notice of “matters of public record,” Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986), and documents the authenticity of which is not contested, Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). The first two documents are matters of public record, and no party disputes the authenticity of any of the documents. Even though the Defendants’ pending motion to dismiss has been mooted, judicial notice of these documents remains appropriate. ORDER IT IS ORDERED: 1. Plaintiff’s motion for leave to amend (Dkt. 13) is granted. 2. Defendants’ motion to dismiss (Dkt. 8) is deemed moot. 3. The hearing scheduled for July 25, 2011 is vacated. M EMORANDUM D ECISION AND O RDER - 2 4. Defendants’ motion for judicial notice (Dkt. 9) is granted. DATED: July 6, 2011 Honorable B. Lynn Winmill Chief U. S. District Judge M EMORANDUM D ECISION AND O RDER - 3

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