Meyer v. Bank of America, N.A. et al

Filing 37

ORDER incorporating and adopting 31 Report and Recommendations.; granting 4 Motion to Dismiss; denying 13 Motion to Amend/Correct. This case shall be dismissed with prejudice. 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)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DANIEL MEYER,

Case No. 1:11-cv-00528-BLW-MHW
Plaintiff,

v.

ORDER

BANK OF AMERICA, N.A., a Delaware
Corporation; RECONTRUST
COMPANY, N.A., a corporation of
unknown origin and a wholly-owned
subsidiary of Bank of America, N.A.;
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, a Federally Chartered
Corporation; and DOES 1-10 as
individuals or entities with an interest in
the property commonly known as:
2809 W. Gavin St.
Boise, Idaho 83703,
Defendants.
On August 14, 2012, United States Magistrate Judge Mikel H. Williams issued a
Report and Recommendation (Dkt. 31), recommending that Defendants’ Motion to
Dismiss (Dkt. 4) be granted, and that Plaintiff’s Motion to Amend be denied (Dkt. 13).
Any party may challenge a magistrate judge’s proposed recommendation by filing
written objections within fourteen days after being served with a copy of the Magistrate
Judges’s Report and Recommendation. See 28 U.S.C. § 636(b)(1)(C). The district court
must then “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. The district court

ORDER - 1

may accept, reject, or modify in whole or in part, the findings and recommendations
made by the Magistrate Judge. Id.; see also Fed. R. Civ. P. 72(b).
Plaintiff filed an objection challenging the Report and Recommendation’s
conclusions. (Dkt. No. 35). The Court has considered the Plaintiff’s contentions and
conducted a de novo review of the record, and the Court agrees with Judge Williams’
conclusions.
Plaintiff’s claims are barred by the doctrine of res judicata. As explained by
Magistrate Judge Williams, the gravamen of each claim in this case is identical to those
in Plaintiff’s earlier claim – they involve the same alleged irregularities preceding and
following commencement of the foreclosure proceedings. Moreover, Bank of
American’s rights and interests would be impaired if this case proceeded after it prevailed
in Plaintiff’s earlier action on the same Note and Deed of Trust because both cases arise
out of the same facts – the purchase of Plaintiff’s home and the subsequent foreclosure
proceedings. There was a final judgment on the merits in the first action and the parties
are the same in this case. Accordingly, Plaintiff’s claims are barred by the doctrine of res
judicata.
Likewise, the motion to amend will be denied because all the proposed new claims
were either brought in the initial Quiet Title Complaint, or they are variations of those
same claims. Accordingly, it would be futile to allow amendment of the claim because it
is beyond doubt that the complaint “could not be saved by any amendment.” Harris v.
Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009).

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With regard to sanctions, given Defendants failure to show that they have
complied with the safe harbor provision in Rule 11(c)(2), the Court will assume they did
not. Although the Court may nevertheless impose sanctions on its own, it chooses not to
do so at this time. However, the Court feels obligated to warn counsel that if he files
future lawsuits against Bank of America, on behalf of himself or others, which only
rehash the same failed arguments he has made to date, the Court will have no choice but
to consider Rule 11 sanctions.
ORDER
IT IS ORDERED:
1.

Having conducted a de novo review of the Report and Recommendation,
the Court finds that Magistrate Judge Williams’ Report and
Recommendation is well founded in law and consistent with the Court’s
own view of the record. Therefore, acting on the recommendation of
Magistrate Judge Williams, and this Court being fully advised in the
premises, IT IS HEREBY ORDERED that the Report and
Recommendation entered on August 14, 2012, (Dkt. 31), shall be, and is
hereby, INCORPORATED by reference and ADOPTED in its entirety.

2.

Defendants’ Motions to Dismiss (Dkt. 4) is GRANTED and this case shall
be DISMISSED WITH PREJUDICE.

3.

Plaintiff’s Motion for Leave to Amend the Complaint and Extend the
Scheduling Order Deadline (Dkt. 13) is DENIED.

ORDER - 3

4.

The Court will enter a separate judgment in accordance with Federal Rule
of Civil Procedure 58.

DATED: September 26, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

ORDER - 4