Derrico v. Pennymac Corp. et al
ORDER. IT IS ORDERED that 32 , 35 , 38 the parties' cross-motions for summary judgment are DENIED as moot. IT IS FURTHER ORDERED that 42 defendant MTC Financial's motion to dismiss is GRANTED without leave to amend. IT IS FURTHER ORDERED that 43 defendant PennyMac's motion to strike is DENIED. Signed by Judge Andrew P. Gordon on 3/2/17. (Copies have been distributed pursuant to the NEF - ADR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
PENNYMAC CORP. and MTC
FINANCIAL, INC. D/B/A/ TRUSTEE
Case No. 2:15-cv-01165-APG-NJK
ORDER: (1) DENYING MOTIONS FOR
SUMMARY JUDGMENT AS MOOT, (2)
GRANTING DEFENDANT MTC
FINANCIAL’S MOTION TO DISMISS,
AND (3) DENYING DEFENDANT
PENNYMAC’S MOTION TO STRIKE
(ECF Nos. 32, 35, 38, 42, 43)
Plaintiff Deon Derrico brings state and federal claims arising from the alleged wrongful
foreclosure of his house against his lender, defendant PennyMac, and the trustee, defendant MTC
Financial. In July 2016, I granted MTC’s motion to dismiss for failure to state a claim but gave
Derrico leave to amend his complaint, which he did on August 12, 2016. ECF Nos. 37, 41. The
pending cross-motions for summary judgment on the original complaint are therefore moot.
MTC moves to dismiss the amended complaint, contending that Derrico did not cure the
defects I identified in the initial complaint. Derrico has failed to respond to MTC’s motion for
over four months, so I grant the motion as unopposed. LR 7-2(d).1 I also find the motion
meritorious and grant it on that independent ground. Derrico’s amended complaint asserts
common law negligence and fraud claims. The negligence claim fails because the only duties
owed by a foreclosure trustee are those under NRS § 107.080, et seq. See Weingartner v. Chase
Home Fin., LLC, 702 F.Supp.2d 1276, 1290–91 (D. Nev. 2010). And Derrico makes no
allegation that MTC violated any of those statutory provisions. The fraud claim alleges
The court did not send Derrico a Klingele notice with respect to MTC’s pending motion to dismiss. This
oversight does not require me to excuse Derrico’s failure to respond, as district courts are only bound to
send such notice to pro se prisoner plaintiffs, not to all pro se plaintiffs. See, e.g., James v. Puga, 585 F.
App’x 510, 511 (9th Cir. 2014) (citing Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir.1986)).
Moreover, Derrico has received two Klingele notices earlier in the case (ECF Nos. 31, 36), so he is well
acquainted with the effects of dispositive motions and the requirement to timely respond to them.
“improper, inaccurate, and fraudulent representations” by MTC, but provides no details. It thus
lacks the specificity—the “who, what, when, where, and how”—required by Rule 9(b). Fed. R.
Civ. P. 9(b); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). This is the
second dismissal of Derrico’s attempted pleading, and this complaint shows no more promise
than the first. I therefore grant MTC’s motion to dismiss without leave to amend.
Finally, PennyMac moves to strike the amended complaint because it violates Federal
Rule of Civil Procedure 15(a), which requires a plaintiff to obtain a stipulation of the parties or
consent of the court to file an amended complaint. But I granted Derrico leave to file an
amended complaint (ECF No. 37), so PennyMac’s motion is groundless and I deny it.
IT IS THEREFORE ORDERED that the parties’ cross-motions for summary judgment
(ECF Nos. 32, 35, 38) are DENIED as moot.
IT IS FURTHER ORDERED that defendant MTC Financial’s motion to dismiss (ECF
No. 42) is GRANTED without leave to amend.
IT IS FURTHER ORDERED that defendant PennyMac’s motion to strike (ECF No. 43)
DATED this 2nd day of March, 2017.
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
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