Penso Trust Company Custodian v. Del Fierro et al

Filing 48

ORDER granting plaintiff/counter-defendant's 33 Motion to Dismiss Counterclaims signed by Judge Ricardo S Martinez.(RS) cc Delfierro

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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PENSCO TRUST COMPANY
CUSTODIAN FBO JEFFREY D.
HERMANN, IRA ACCOUNT NUMBER
20005343,

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Plaintiff,

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v.
LORINA DELFIERRO, et al.,

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Defendants.

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CASE NO. C16-1926 RSM
ORDER GRANTING PLAINTIFF’S
MOTION TO DISMISS
COUNTERCLAIMS

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I.

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INTRODUCTION

This matter comes before the Court on Plaintiff’s Motion to Dismiss Defendant

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Delfierro’s Counterclaims in this action.

Dkt. #33.

Plaintiff argues that Defendant’s

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Counterclaims are barred by the doctrine of res judicata. Id. Defendant filed a Response, but

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the Court has stricken it as untimely. Dkts. #38, #39 and #42. For the reasons set forth below,
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the Court now GRANTS Plaintiff’s motion.
II.

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BACKGROUND

Plaintiff filed the instant action in King County Superior Court on November 14, 2016,
seeking a judicial foreclosure on Ms. Delfierro’s residential property. Dkt. #4. On December

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16, 2016, Defendant Delfierro removed the action to this Court on the basis of diversity
jurisdiction. Dkt. #1. Defendant subsequently filed an Amended Answer in this matter and
ORDER
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alleged four Counterclaims against Plaintiff for: 1) Wire Fraud under 18 U.S.C. § 1343; 2)

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violations of 18 U.S.C. § 152; 3) violations of Washington’s Consumer Protection Act; and 4)

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False Claims. Dkt. #31 at Counterclaims ¶ ¶ 4.1-4.23. Although difficult to discern from the

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Amended Answer, Defendant alleges as the bases for her Counterclaims that there is no effective

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chain of title with respect to her property, that certain sums of money have not been accounted
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for and have been taken fraudulently, and that certain title documents have been improperly re-

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sequenced. Id. Plaintiff now moves to dismiss the Counterclaims as barred by the doctrine of

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res judicata.

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III.

DISCUSSION

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A. Legal Standards
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1. 12(b)(6) Motions

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Plaintiff brings this motion pursuant to Federal Rule of Civil Procedure 12(b)(6) for

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Plaintiff’s failure to state a claim upon which relief may be granted. On a motion to dismiss for

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failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as

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true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, the Court is not required to accept as true a

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“legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Complaint “must contain

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sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

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Id. at 678. This requirement is met when the plaintiff “pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Id. Absent facial plausibility, a plaintiff’s claims must be dismissed. Twombly, 550 U.S. at 570.

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ORDER
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Though the Court typically limits its Rule 12(b)(6) review to allegations set forth in the

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Complaint (in this case, the Counter Complaint), the Court may also consider documents of

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which it has taken judicial notice. See F.R.E. 201; Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th

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Cir. 2007). Here, the Court takes judicial notice of and considers herein the documents attached

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to Plaintiff’s Request for Judicial Notice, which are documents from prior judicial proceedings
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directly affecting the instant matter. Dkt. #7 and Exhibits A-E thereto. The Court may properly

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take judicial notice of documents such as these whose authenticity is not contested, and which

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are proceedings in other courts so long as those proceedings have a direct relation to the matters

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at issue in the case before the Court. Allen v. City of Los Angeles, 92 F.3d 842 (9th Cir. 1992)

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(noting that a court “may take notice of proceedings in other courts, both within and without the
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federal judicial system, if those proceedings have a direct relation to matters at issue.” (quoting

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United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 971 F.2d 244, 248 (9th

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Cir. 1992)), overruled in part on other grounds by Acri v. Varian Assocs., 114 F.3d 999, 1000

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(9th Cir. 1997).

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2. Res Judicata

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The doctrine of res judicata “bar(s) all grounds for recovery which could have been

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asserted, whether they were or not, in a prior suit between the same parties . . . on the same cause

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of action.” Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982) (internal

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quotations omitted); see also Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th

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Cir. 2001) (“The doctrine is applicable whenever there is (1) an identity of claims, (2) a final

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judgment on the merits, and (3) identity or privity between parties.”) (internal quotations

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omitted). The doctrine serves the important public policy of providing “an end to litigation” and

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ensures that “matters once tried shall be considered forever settled as between the parties.”

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ORDER
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Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 401-02, 101 S. Ct. 2424, 69 L. Ed. 2d 103
(1981).

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To determine whether a subsequent lawsuit involves the same causes of action as a prior

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suit, the Court must consider the following four factors: (1) whether rights established by the

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prior judgment would be impaired by prosecution of the second action, (2) whether both actions
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present substantially the same evidence, (3) whether both actions involve infringement of the

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same right, and (4) whether both actions arise out of the same transactional nucleus of facts.

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Costantini, 681 F.2d at 1201-02. Of these four factors, the last is most important. Id. at 1202;

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see also Owens, 244 F.3d at 714 (“The central criterion in determining whether there is an identity

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of claims between the first and second adjudications is whether the two suits arise out of the same
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transactional nucleus of facts.”) (internal quotations omitted).
B. Defendant Delfierro’s Counterclaims
Ms. Delfierro has made a number of Counterclaims arising from her allegation that
Plaintiff/Counter-Defendant Pensco Trust has improperly re-recorded certain documents to

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correct errors with the chain of title. Dkt. #31 at Counterclaim Facts, ¶ ¶ 3.1-3.16. Although

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Ms. Delfierro recognizes that there has been prior litigation between the same parties involving

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the same property which included chain of title issues, it appears she is now claiming that the re-

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recording of documents after the prior litigation concluded has given rise to the instant

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Counterclaims. Id.

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Defendant argues that all of the elements of res judiccata are met with respect to these

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Counterclaims. Dkt. #33 at 6-9. First, it argues that the prior litigation involved substantially

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the same claims. The Court agrees. Indeed, Ms. Delfierro’s Counterclaims in this litigation

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continue to attack Plaintiff’s ownership of the mortgage note, and focus on alleged title defects.

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ORDER
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Dkt. #31 at ¶ ¶ 3.6-3.14. Claims regarding Plaintiff’s ownership have already been litigated and

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resolved in Plaintiff’s favor. Dkt. #34, Exhibit E at sub-exhibit H. After hearing evidence and

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argument in a bench trial, state court Judge Carol A. Schapira concluded that “PENSCO is the

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beneficial owner of the Note and Deed of Trust with power and authority to enforce the same.”

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Id. While the record reflects that multiple Assignments of Deeds of Trust were rerecorded in
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2015 to “correct recording sequence,” Dkt. #34, Ex. E at sub-exhibits D, E and G, Judge Schapira

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noted that the documents had not been recorded at the time of her decision, but reached the same

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conclusion with respect to PENSCO’s interest in the Note. Id. (“Although this particular

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Assignment of Deed of Trust has not yet been recorded, it remains valid between the signatories,”

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. . . . “The Court finds Plaintiff has not proven there is any other claimant other than PENSCO
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to the beneficial interest in her Note and Deed of Trust.”). Thus, the Court finds that even though

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Ms. Delfierro focuses on the fact that some title documents were rerecorded after the prior

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litigation concluded, the Counterclaims are still aimed at attacking whether PENSCO is the

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beneficial owner of the Note. Further, the actions appear to present substantially the same

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evidence, and arise out of substantially the same nucleus of facts. Accordingly, the first element
if the doctrine of res judicata – identity of claims – is met.

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Moreover, there appears no dispute that the second and third elements – final judgment

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on the merits and identity or privity between parties – are also met. Accordingly, the Court agrees

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that the doctrine applies and Defendant Delfierro’s Counterclaims are hereby dismissed.

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IV.

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CONCLUSION

Having reviewed Plaintiff/Counter-Defendant’s Motion to Dismiss (Dkt. #33), the
documents in support thereof, and the remainder of the record, the Court hereby ORDERS:
1. Plaintiff/Counter-Defendant’s Motion to Dismiss (Dkt. #33) is GRANTED.

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ORDER
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2. Defendant/Counter-Plaintiff Delfierro’s Counterclaims are DISMISSED in their
entirety.

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3. The parties’ motions for summary judgment remain pending and will be resolved by

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separate Order in due course.
DATED this 21st day of June 2017.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER
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