Coy v. United States of America et al
Filing
10
MEMORANDUM DECISION AND ORDER. Motion to Dismiss 6 is GRANTED. This action is DISMISSED WITH PREJUDICE as to the claims made the United States Department of Veterans Affairs. Plaintiff is HEREBY NOTIFIED that this action will be Dismissed Withou t Prejudice as to the remaining Defendants on 5/30/2019 for Lack of Service/Prosecution unless Plaintiff shows good cause prior to that date to why the claims against the remaining Defendants should not be dismissed. 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 (st)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBERT BRYAN COY,
Plaintiff,
Case No. 1:18-cv-00524-EJL
v.
UNITED STATES OF AMERICA
DEPARTMENT OF VETERANS
AFFAIRS, METLIFE HOME LOANS, A
DIVISION OF METLIFE BANK, N.A.,
AMERIGROUP MORTGAGE CORP., A
DIVISION OF MORTGAGE INVESTORS
CORP., and FREEDOM MORTGAGE
CORP.,
Defendants.
MEMORANDUM DECISION AND
ORDER
INTRODUCTION
Before the Court is a Motion to Dismiss filed by the Defendant United States of
America, Department of Veterans’ Affairs. (Dkt. 6.) No response has been filed and the
time for doing so has passed. The matter is ripe for the Court’s consideration. Having fully
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reviewed the record herein, the Court finds that the facts and legal arguments are
adequately presented in the briefs and record. In the interest of avoiding further delay, and
because the Court conclusively finds that the decisional process would not be significantly
aided by oral argument, the Motion is decided on the record. For the reasons stated herein,
the Court grants the Motion.
FACTUAL AND PROCEDURAL BACKGROUND
On November 21, 2018, Plaintiff Robert Coy filed the Complaint in this matter
raising claims for declaratory relief, wrongful foreclosure, quiet title, accounting, and
refund fees & costs. (Dkt. 1.) The claims relate to the Department of Veterans Affairs’
(“VA”) non-judicial foreclosure and state eviction proceedings regarding certain real
property located at 9941 West Granger Avenue, Boise, Idaho 83704 (“Granger Property”).
The other Defendants named in this case are the mortgage companies who loaned funds or
refinanced the loan relating to the Granger Property. The VA prevailed in the state court
case to remove Mr. Coy from the property. (Dkt. 9, Ex. A.)
In this case, Mr. Coy alleges he has superior priority title to the Granger Property
based on a January 23, 1889 Land Patent issued by President William McKinley to Lizzie
J. Fitzpatrick. (Dkt. 1, Ex. 1.) Mr. Coy claims his title interest as a successor to Ms.
Fitzpatrick is superior to any other claim and that the VA and remaining lender Defendants
infringed upon his property rights, breached the contractual and fiduciary duties they owed
to Plaintiff, and wrongfully foreclosed on the property. (Dkt. 1.) Mr. Coy further claims the
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VA’s state court ejectment action “ignored” the Land Patent and that the VA has taken no
action to extinguish his “top priority and pre-emptive title interest in the Property created
by said Land Patent” nor could the VA do so because it lacks standing and privity. (Dkt. 1.)
The VA’s eviction proceedings, Mr. Coy argues, violated his constitutional rights and the
covenant of good faith and fair dealing. Further, Mr. Coy alleges the other named
Defendants are lending institutions who defrauded him and breached the covenant of good
faith and fair dealing by failing to disclose/obscured facts relating to his superior title
resulting in the wrongful foreclosure.
On February 15, 2019, the VA filed this Motion to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(5) and (6). (Dkt. 6.) Plaintiff did not file a response to the Motion
and the time for doing so has passed. (Dkt. 7, 8.) The Court finds as follows.
STANDARDS OF LAW
Under Federal Rule of Civil Procedure 12(b)(5), a defendant may move for
dismissal due to insufficient service of process. Fed. R. Civ. P. 12(b)(5). Once a defendant
challenges service of process, the plaintiff has the initial burden of establishing the validity
of service of process under Rule 4. See, e.g., Brockmeyer v. May, 383 F.3d 798, 801 (9th
Cir. 2004). If plaintiff makes such a showing, defendant must present evidence to establish
the absence of valid service. See Ritchie Bros. Auctioneers (America) Inc. v. Suid, Case No.
C17-1481-MAT, 2018 WL 72166, at *10 (W.D. Wash. Feb. 6, 2018). The plaintiff must
then present countering evidence to show proper service or create an issue of fact
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necessitating an evidentiary hearing. Id. “When considering a motion to dismiss a
complaint for untimely service, courts must determine whether good cause for the delay
has been shown on a case by case basis.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)
(citation omitted).
A motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6),
tests the sufficiency of a party’s claim for relief. When considering such a motion, the
Court’s inquiry is whether the allegations in a pleading are sufficient under applicable
pleading standards. Federal Rule of Civil Procedure 8(a) sets forth minimum pleading
rules, requiring only a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2).
A motion to dismiss will only be granted if the complaint fails to allege “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). Although “we
must take all of the factual allegations in the complaint as true, we are not bound to accept
as true a legal conclusion couched as a factual allegation.” Id. at 1949-50; see also
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
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Therefore, “conclusory allegations of law and unwarranted inferences are insufficient to
defeat a motion to dismiss for failure to state a claim.” Caviness v. Horizon Comm.
Learning Cent., Inc., 590 F.3d 806, 811-12 (9th Cir. 2010) (citation omitted).
DISCUSSION
1.
Motion to Dismiss the Claims Against the Department of Veterans Affairs
The VA seeks dismissal of Mr. Coy’s claims against it based on insufficient service
of process and because the claims have been fully litigated and finally resolved by the state
court and, therefore, are barred by res judicata. The VA asserts the claims are also
precluded by sovereign immunity and as a matter of law. (Dkt. 6.) Because res judicata
fully resolves the Motion, the Court need only address that argument.
Res judicata, or claim preclusion, prohibits lawsuits on “any claims that were
raised” or could have been raised in a prior action. Stewart v. U.S. Bancorp, 297 F.3d 953,
956 (9th Cir. 2002). In other words, the “doctrine of res judicata bars a party from bringing
a claim if a court of competent jurisdiction has rendered a final judgment on the merits of
the claim in a previous action involving the same parties or their privies.” Siegel v. Federal
Home Loan Mortg. Corp., 143 F.3d 525, 528 (9th Cir. 1998). Res judicata applies when
there is: “(1) an identity of claims; (2) a final judgment on the merits; and (3) identity or
privity between parties.” United States v. Liquidators of European Fed. Credit Bank, 630
F.3d 1139, 1150 (9th Cir. 2011); see also Farmers Nat'l Bank v. Shirley, 878 P.2d 762, 767
(Idaho 1994). The purpose of the doctrine is to “relieve parties of the cost and vexation of
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multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions,
encourage reliance on adjudication.” Marin v. Hew, Health Care Financing Agency, 769
F.2d 590, 594 (9th Cir. 1985) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).
The second and third steps for res judicata are met here. The prior state court action
was a final judgment on the merits of the claims and was between the same parties to the
Motion to Dismiss in this case - the VA and Mr. Coy. (Dkt. 9, Ex. A.) Thus, only the first
step, whether there is an identity of the claims between the two cases, is in question.
“Identity of claims exists when two suits arise from ‘the same transactional nucleus
of facts.’ Newly articulated claims based on the same nucleus of facts may still be subject
to a res judicata finding if the claims could have been brought in the earlier action.” Tahoe–
Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1078 (9th Cir. 2003)
(citation omitted) (some internal quotation marks omitted). This case and the prior state
court action both arise from “the same transactional nucleus of facts.”
The state case involved the VA’s complaint against Mr. Coy for restitution of real
property relating to the non-judicial foreclosure and eviction of Mr. Coy from the Granger
Property. (Dkt. 9, Ex. A.) Mr. Coy raised several affirmative defenses and a counterclaim
asserting he had “superior title under a Land Patent” issued on January 23, 1899 by
President William McKinley. (Dkt. 9, Ex. A.)1 The VA prevailed and obtained judgment
1
The Court notes that Mr. Coy’s central claim to superior title based on the 1899 Land Patent has
been rejected by other courts. See Barbieri v. Aurora Loan Services, No. C 10-4044 RS, 2011 WL
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and order of eviction.
In this case, the parties’ positions have reversed, but the claims arise out of the same
transactional nucleus of facts – the dispute over the foreclosure, eviction, and title to the
Granger Property. In fact, Mr. Coy’s counterclaim in the state court action raised the same
allegation regarding the 1899 Land Patent. There is, therefore, an identity of claims
because Mr. Coy raised his claims and/or could have brought his current claims in the prior
state court action.
Because there is an identity of claims, privity of the parties, and a final adjudication
on the merits, the Court finds Mr. Coy’s claims against the VA in this action are barred by
res judicata. The Motion to Dismiss is granted.
Additionally, Plaintiff has not responded to the Motion to Dismiss as required under
the Local Civil Rules. See Dist. Local Civ. R. 7.1(c)(1) (A party responding to a motion
“must serve and file a response brief, not to exceed twenty (20) pages, within twenty-one
(21) days after service upon the party of the memorandum of points and authorities of the
moving party.”). Such a failure to respond “may be deemed a waiver by the moving party
of the…motion” and “may be deemed to constitute a consent to…the granting of said
motion or other application.” See Dist. Local Civ. R. 7.1(e). Pro se litigants are held to
same procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
13277763, at *2 (N.D. Cal. July 1, 2011); Flores v. Wells Fargo Bank, N.A., No. 12-c-1191, 2013
WL 1192767 (E.D. Wis. March 22, 2013).
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1987). As such, Plaintiff’s failure to respond to the Motion to Dismiss is deemed to
constitute his consent to the granting of the motion and/or his waiver to the same. For all of
these reasons, the Court grants the VA’s Motion to Dismiss. The claims against the VA are
dismissed.
Because this matter involves multiple claims against multiple parties, and because
the circumstances of this case constitute “no just reason for delay” within the meaning of
Fed. R. Civ. P. 54(b), the Court will enter final judgment as to all claims against the VA.
2.
Remaining Defendants
Three other Defendants are named in this action but none have appeared. (Dkt. 1.)
On December 7, 2018, the Court entered a Litigation Order directing Plaintiff to serve the
same on all parties who had not entered an appearance. (Dkt. 2.) Plaintiff was further
directed to file a status report regarding service of the summons and complaint within thirty
days of the filing of the Complaint or, alternatively, to file proofs of service. (Dkt. 2.) The
Complaint was filed on November 21, 2018 and the Summons were issued on January 7,
2019. (Dkt. 3, 4.) Plaintiff has not filed either a status report or proof of service as he was
directed to do. In addition, no party has filed a litigation or discovery plan. (Dkt. 2.)
Aside from the Motion to Dismiss addressed above, the only other filing in this
matter by a party was made on February 5, 2019 when Plaintiff filed a Notice of Lis
Pendens and Notice of Recording of Lis Pendens. (Dkt. 5.) Attached to that filing is a
certificate of service stating the Notice was mailed on February 6, 2019 to Benjamin J.
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Mann, Richard A. Cummings, Metlife Home Loans, Amerigroup Mortgage Corp., and
Freedom Mortgage Corp. (Dkt. 5.) Again, however, Plaintiff has not served the Defendants
with the Complaint or Summons.
Federal Rule of Civil Procedure 4(m) provides that, unless the time for service is
extended by the Court for good cause, where “a defendant is not served within 90 days
after the complaint is filed, the court – on motion or on its own after notice to the plaintiff –
must dismiss the action without prejudice against that defendant or order that service be
made within a specified time.”
No extension of the time for service has been granted and more than 90 days have
passed since the Complaint was filed. The Court’s Litigation Order has already directed
Plaintiff to serve the Defendants but no service has been made. (Dkt. 2.) Accordingly, the
Court hereby notifies Plaintiff that this action will be dismissed without prejudice pursuant
Rule 4(m) on May 30, 2019 for Lack of Service/Prosecution unless Plaintiff shows good
cause prior to that date as to why the case should not be dismissed.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Motion to Dismiss (Dkt.
6) is GRANTED. This action is DISMISSED WITH PREJUDICE as to the claims made
against the United States Department of Veterans Affairs. The Court will enter a separate
Judgment as to those claims.
ORDER - 9
IT IS FURTHER ORDERED that Plaintiff is HEREBY NOTIFIED that this
action will be Dismissed Without Prejudice as to the remaining Defendants on May 30,
2019 for Lack of Service/Prosecution unless Plaintiff shows good cause prior to that date
as to why the claims against the remaining Defendants should not be dismissed.
DATED: May 16, 2019
_________________________
Honorable Edward J. Lodge
U.S. District Judge
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