Nguyen et al v. Bank of America, N.A.
ORDER AND OPINION, granting 6 Motion to Dismiss. Case terminated on 6/26/2017; granting 14 Motion to Dismiss for Failure to State a Claim.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
TU NGUYEN, et al,
BANK OF AMERICA, N.A.,
July 27, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:16-CV-1523
ORDER AND OPINION
Pending before the Court are two Motions to Dismiss filed by Defendant (Document Nos.
6, 14). Plaintiffs have not responded to either Motion. Having reviewed these filings, the facts,
and the relevant law, the Court determines that Defendant’s Motions will be granted.
Plaintiffs Tu Nguyen and Chau Ho Huynh (collectively “Plaintiffs”) filed the current
action on October 25, 2013 in the 333rd Judicial District Court of Harris County, Texas, Cause
No. 219-04912-2014, in the matter styled Tu Nguyen & Chau Ho Huynh v. Bank of America,
N.A. (the “State Court Action”). Plaintiffs generally claim that Defendant’s lien interest on their
home is a fraudulent document which should not be accorded lien status. (Document No. 1-1 at
9). On November 15, 2013 a default judgment was entered in the State Court Action. (See
Document No. 1-1 at 149, Amended Judicial Finding of Fact and Conclusion of Law, referred to
herein as the “default judgment”). Defendant filed a Notice of Removal on May 31, 2016
(Document No. 1) and then filed a Motion to Vacate, arguing that service was never obtained,
and therefore the default judgment should be set aside. (Document No. 4). This Court agreed that
Defendant was never properly served and vacated the default judgment. (See Document No. 12).
Defendant has now filed two Motions to Dismiss. (Document Nos. 6, 14).
Standard of Review
When a district court reviews a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it
must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true.
Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (citing Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009)). Dismissal is appropriate only if the complaint fails to plead “enough facts
to state a claim to relief that is plausible on its face.” Leal v. McHugh, 731 F.3d 405, 410 (5th
Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Montoya v. FedEx Ground Package
System, Inc., 614 F.3d 145, 148 (5th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The plausibility standard is not akin to a “probability requirement,” but asks for more
than a “possibility that a defendant has acted unlawfully.” Twombly, 550 U.S. at 556. “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do. . . .” Id. at 544.
Dismissal under Rule 12(b)(6) on res judicata grounds may be appropriate when the
elements of res judicata are apparent on the face of the pleadings. Dean v. Mississippi Bd. of Bar
Admissions, 394 F. App'x 172, 175 (5th Cir. 2010) (citation omitted). In ruling on such a motion
“[t]he court may consider documents attached to or incorporated in the complaint and matters of
which judicial notice may be taken.” Id.
Plaintiffs’ petition in the current case is based upon a dispute Plaintiff has already
litigated against Defendant four separate times in the Southern District of Texas. (Document No.
14 at 1).1 The cases were resolved as follows:
1) The first case (No. 4:12-cv-331) was filed by Nguyen against Defendant and involved
the same lien. That case was resolved by agreement between the parties and dismissed.
(Document Nos. 4, 5).
2) Nguyen then filed a second lawsuit asserting largely the same claims against
Defendant. (No. 4:12-cv-1481). The Court dismissed the second case due to res judicata.
(Document No. 9) (affirmed by Nguyen v. Bank of Am., N.A., 516 Fed. Appx. 332 (5th
3) Nguyen then filed a third case (4:12-cv-3158) which was based on the “same nucleus
of facts.” That case was dismissed due to res judicata. (Document No. 25) (affirmed by
Nguyen v. Bank of Am., N.A., 539 Fed. Appx. 325 (5th Cir. 2013)).
4) Nguyen then filed a fourth case (4:14-cv-2058) to quiet title on the property, which
was dismissed due to failure to state a claim. (Document No. 26).
Due to these prior cases, Defendant argues that Plaintiffs’ case should be dismissed under the
doctrine of res judicata. (Document No. 14 at 1).
“‘Under res judicata, a final judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have been raised in that action.” Oreck
Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009) (quoting Allen v. McCurry, 449
U.S. 90, 94 (1980)). The doctrine “‘insures the finality of judgments and thereby conserves
judicial resources and protects litigants from multiple lawsuits.’” Id. (quoting United States v.
Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994)). To demonstrate that res judicata bars a later suit, a
party must satisfy four conditions: (1) the parties are identical or in privity in the two actions; (2)
the prior judgment was rendered by a court of competent jurisdiction; (3) there is a final
judgment on the merits; and (4) the same claim or cause of action must be involved in both suits.
Id. (citing In re Ark-La-Tex Timber Co., 482 F.3d 319, 330 (5th Cir. 2007)); see also Matter of
Swate, 99 F.3d 1282, 1286 (5th Cir. 1996). Usually the Court determines if two suits involve the
same claim or cause of action by applying the transactional test of the Restatement (Second) of
Defendant’s Motion to Dismiss (Document No. 14) includes copies of each order discussed. (See Exhibits A-D).
Judgments § 24. Petro-Hunt, LLC v. United States, 365 F.3d 385, 395 (5th Cir. 2004). That test
focuses upon whether the two cases under review are based on “the same nucleus of operative
facts.” In re Southmark Corp., 163 F.3d 925, 934 (5th Cir. 1999). Thus it is the nucleus of
operative facts, not the type of relief sought or substantive theories advanced or type of rights
asserted, which defines the claim for purposes of res judicata. United States v. Davenport, 484
F.3d 321, 326 (5th Cir. 2007). If two actions share the same nucleus of operative facts, “the prior
judgment’s preclusive effect extends to all rights the original plaintiff had with respect to all or
any part of the transaction, or series of connected transactions, out of which the [original] action
arose.” Id. (citations and internal quotations omitted).
Plaintiffs’ claims are clearly barred by the doctrine of res judicata. Plaintiff Nguyen and
Defendant Bank of America are the same parties which were involved in the previous cases. The
additional Plaintiff here, Chau Ho Huynh, is a co-borrower and is Nguyen’s wife. Therefore she
is in privity with Nguyen. See Cuauhtli v. Chase Home Fin. LLC, 308 F. App'x 772, 773-74 (5th
Cir. 2009). Furthermore, a court of competent jurisdiction entered a final judgment on the merits
in the previous cases. Finally, all of the previous cases were based on “the same nucleus of
operative facts,” as all have involved the issue of Defendant’s ability to enforce the same
mortgage loan agreement. Thus Plaintiffs’ claims are barred by the doctrine of res judicata.
For the reasons stated above the Court hereby
ORDERS that Defendant’s Motions to Dismiss (Document Nos. 6, 14) are GRANTED
and Plaintiffs’ claims are DISMISSED WITH PREJUDICE.
SIGNED at Houston, Texas, this 26th day of July, 2017.
UNITED STATES DISTRICT JUDGE
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