Lalwani et al v. Wells Fargo Bank, NA et al

Filing 20

ORDER Granting 9 Motion to Dismiss. Signed by Judge James C. Mahan on 9/26/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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2:11-CV-728 JCM (RJJ)

KAMAL P. LALWANI, et al.,
Plaintiffs,
v.
WELLS FARGO BANK N.A., et al.,

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Defendants.

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ORDER

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Presently before the court is defendants Wells Fargo Bank, N.A., Wells Fargo Home

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Mortgage, Inc., Wells Fargo Asset Sec. Corp., HSBC Bank USA, N.A., MERSCORP, Inc., and

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Mortgage Electronic Registration System, Inc.’s motion to dismiss duplicative complaint. (Doc. #9).

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Plaintiffs Kamal and Sanchi Lalwani failed to file a response to this motion. On June 13, 2011, the

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above-named defendants filed a notice of non-opposition to the motion. (Doc. #16). Defendant

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National Default Servicing Corp. filed a joinder to the motion on August 5, 2011. (Doc. #19).

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Defendants assert that the complaint at issue in this case is substantially duplicative of the

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complaint in Lalwani et. al. v. Nevada Association Services, Inc. et. al., case number 2:11-cv-00084,

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which is currently pending before Judge Dawson. (Doc. #9). Defendants note that the case pending

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before Judge Dawson was removed to federal court prior to the filing of the instant action.

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Defendants further argue that the proceedings before Judge Dawson are at a more developed stage

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because there are dispositive motions pending.

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James C. Mahan
U.S. District Judge

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Specifically, defendants assert that the two cases: (1) involve the same parties, (2) concern

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the same property located at 2020 Barhill Avenue, North Las Vegas, Nevada, 89084, (3) allege

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substantially similar claims, and (4) arise from the same transactional nucleus of facts. (Doc. #9).

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Legal Standard

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District courts have “broad discretion to control their dockets” and may dismiss actions

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where appropriate “[i]n the exercise of that power.” Adams v. California Dep’t. of Health Servs., 487

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F.3d 684, 688 (9th Cir. 2007). “Plaintiffs generally have no right to maintain two separate actions

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involving the same subject matter at the same time in the same court and against the same

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defendant.” Id. (internal citations omitted).

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The Ninth Circuit utilizes the claim preclusion test to determine whether a suit is duplicative.

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Id. The court first examines the causes of action asserted in the two suits using the transaction test.

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Id. In applying the transaction test, the court looks to four criteria: (1) whether rights or interests

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established in the prior judgment would be destroyed or impaired by prosecution of the second

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action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the

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two suits involve infringement of the same right; and (4) whether the two suits arise out of the same

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transactional nucleus of fact. Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir.

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1982). Second, the court examines whether the parties to the two suits are the same or in privity.

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Adams, 487 F.3d at 689.

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Additionally, pursuant to Nevada Local Rule 7-2(d), “the failure of an opposing party to file

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points and authorities in response to any motion shall constitute a consent to the granting of the

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motion.” However, the court will not automatically grant every unopposed motion. In Ghazali v.

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Moran, 46 F.3d 52, 53 (9th Cir. 1995), the Ninth Circuit held that the court had to weigh the

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following factors before dismissing the action: (1) the public interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)

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the public policy favoring disposition of cases of their merits; and (5) the availability of less drastic

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sanctions.

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James C. Mahan
U.S. District Judge

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1.

Same Causes of Action

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To determine whether cases are duplicative, the court first looks at the causes of action in the

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two cases. “Whether two events are part of the same transaction or series depends on whether they

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are related to the same set of facts and whether they could conveniently be tried together.” Western

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Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992).

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The motion to dismiss duplicative complaint asserts that all four of the claim preclusion

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factors weigh in favor of dismissing the instant case. (Doc. #9; see also, Costantini, 681 F.2d at

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1201). Specifically, defendants allege that “the [f]irst [a]ction and the [s]econd [a]ction both share

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the same transactional nucleus of facts. (Doc. #9). Both actions contain allegations of wrongful

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foreclosure, misrepresentation, and conspiracy arising from the defendants’ foreclosure of the 2020

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Barhill Avenue property.

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Plaintiffs have not responded to these allegations. Therefore, pursuant to local rule 7-2(d),

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the court accepts defendants’ allegations as true for the purposes of the instant motion. All of the

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claims asserted in the case currently before the court could have been brought in the case before

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Judge Dawson.

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2.

Same Parties

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In the second part of the claim preclusion test, the court looks to determine whether the

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parties to the two suits are the same or in privity. Adams, 487 F.3d at 689. The instant case implicates

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the same parties as the case before Judge Dawson. The only difference between the two cases is that

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Nevada Association Services, Inc. and Aliante Master Association are not defendants in the case

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presently before this court. Therefore, there is no danger that dismissing this complaint will unfairly

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deprive any plaintiff or defendant of access to the court for the adjudication of the claims arising

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from this transactional nucleus of fact.

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3.

Claim Preclusion

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Defendants have established that the complaint at issue is duplicative of the complaint

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presently before Judge Dawson. The court has broad discretion to control its docket. Adams, 487

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F.3d at 688. Dismissing the duplicative complaint is an appropriate exercise of this discretionary

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James C. Mahan
U.S. District Judge

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power. See id.

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Nevada Local Rule 7-2(d)

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Additionally, the court notes that plaintiffs did not respond to defendants’ motion to dismiss

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the duplicative complaint. Therefore, plaintiffs are presumed to have consented to the granting of

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the motion. See Local Rule 7-2(d). The court further finds that the Ghazali factors weigh in favor

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of dismissing the instant action. See Ghazali 46 F.3d at 53

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First, the related case before Judge Dawson was removed to federal court in January 2011,

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and there are pending dispositive motions before that court. The instant action was removed to

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federal court five months later, and the case is not as fully developed. Therefore, the public interest

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in expeditious resolution of litigation factor weighs in favor of dismissing this action. See Ghazali

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46 F.3d at 53.

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Second, as addressed above, all of the causes of action asserted in this case could have been

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asserted in the case before Judge Dawson. The case currently pending before this court is duplicative

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and unnecessarily burdens the court’s docket. The second Ghazali factor also weighs in favor of

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dismissing this action. See Ghazali 46 F.3d at 53.

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Finally, forcing the same defendants to defend themselves in two distinct cases involving the

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same transactional nucleus of fact poses a substantial risk of prejudice to the defendants. Therefore,

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the third Ghazali factor also weighs in favor of dismissing the case. See Ghazali 46 F.3d at 53.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to

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dismiss duplicative complaint (doc. #9) be, and the same hereby is, GRANTED.
DATED September 26, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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