Exelby et al v. Land Title Company et al

Filing 17

ORDER granting dfts' 12 Motion to Dismiss by Judge Ricardo S Martinez.(RS)cc Exelby

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 13 ROBERT E. EXELBY and KARMELLA L. JACKSON EXELBY, CASE NO. C13-575RSM 14 Plaintiffs, 15 16 17 ORDER GRANTING MOTION TO DISMISS v. LAND TITLE COMPANY; JPMORGAN CHASE BANK, N.A.; and NORTHWEST TRUSTEE SERVICES, INC., 18 Defendants. 19 20 21 Plaintiffs Robert and Karmella Exelby, appearing pro se, filed this action for a temporary 22 restraining order, preliminary injunction, and an accounting in Skagit County Superior Court on 23 February 25, 2013. Dkt. # 5. Plaintiffs sought to stop a “fraudclosure” sale of their home which was 24 scheduled for March 8, 2013. Id., ¶ 3. They also demanded a “full accounting . . . [to] determine if a 25 trust relationship has been constituted with regard to the parties. . .” Id., ¶ 4. Defendants removed the 26 action to this Court on March 29, 2013, asserting both federal question and diversity as bases for this 27 28 ORDER - 1 1 Court’s jurisdiction. Dkt. # 1. The Court has jurisdiction pursuant to 28 U.S.C. § 1332, as the amount 2 in controversy exceeds $75,000 and the parties, apart from the nominal defendants, are diverse in 3 citizenship. 4 This matter is now before the Court for consideration of defendants’ motion to dismiss for failure 5 to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. # 12. The motion was noted for May 17, 2013, 6 and of this date, three weeks later, plaintiffs have failed to respond in any way, or to request additional 7 time in which to do so. Indeed, they have failed to appear in this Court in any way, and thus have failed 8 to prosecute their action.. 9 Pursuant to Local Rule LCR 7(b)(2), the Court may deem plaintiffs’ failure to file opposition as 10 an admission that the motion has merit, and grant the motion without further proceedings. Upon review 11 of the complaint and defendants’ motion to dismiss, the Court finds that the motion has merit and 12 dismissal is appropriate for the reasons advanced in the motion.1 13 Defendants’ motion to dismiss (Dkt. # 12) is accordingly GRANTED and the complaint and 14 action are DISMISSED for failure to state a claim. The Clerk shall close this file. 15 16 Dated this 11 day of June 2013. 17 A 18 19 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 20 21 22 23 24 1 27 Defendants’ motion does not advise the Court as to the status of the foreclosure sale that was scheduled for March 8, 2013. However, the Court may take judicial notice of the records of the United States Bankruptcy Court for the Western District of Washington, which show that plaintiff Robert Exelby filed a pro se petition for bankruptcy on March 7, 2013. In re Exelby, Cause No. 13-11996KAO. That petition was dismissed April 9, 2013 and a new petition filed by counsel on behalf of both Robert and Karmella Exelby on May 9, 2013. In re Exelby, Cause No. 13-14335-KAO. 28 ORDER - 2 25 26

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