Blanchard v. North Cascade Trustee Services Inc et al

Filing 39

ORDER re: Defendants Litton Loan Servicing LP, Mortgage Electronic Registrations Systems Inc, Ocwen Loan Servicing LLC.'s 32 Motion to Dismiss and re: Defendant North Cascade Trustee Services, Inc's 33 Joinder in Motion to Dismiss. D efendants have established firm bases for dismissal under FRCP 4(m), FRCP 12(b)(1),(b)(2) and (b)(5), and FRCP 12(b)(6). IT IS ORDERED that this matter is DISMISSED with prejudice. Signed by Judge Marsha J. Pechman. (PM) cc: plaintiff via first class mail

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ANNETTE BLANCHARD,
Plaintiff,

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CASE NO. C17-1088 MJP
ORDER OF DISMISSAL

v.

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NORTH CASCADE TRUSTEE
SERVICES, INC, et al.,

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Defendants.
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The Court, having received and reviewed:
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1. Defendants’ Motion for Dismissal (Dkt. No. 32),
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2. Motion of Defendant North Cascade Trustee Services, Inc. Joining in Co-Defendants’
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Motion to Dismiss (Dkt. No. 33) 1
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all attached declarations and exhibits, and relevant portions of the record, rules as follows:
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IT IS ORDERED that this matter is DISMISSED with prejudice.
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No responsive brief was filed by Plaintiff.

ORDER OF DISMISSAL - 1

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Background

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This case has a lengthy procedural history, beginning with a mortgage default in February

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2013, continuing through numerous bankruptcy filings and culminating in the filing of a series of

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lawsuits, of which this is merely the latest. 2 Plaintiff has twice been ordered in the instant matter

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to serve Defendants in conformity with the Federal Rules of Civil Procedure (FRCPs)—she first

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responded by filing unexecuted waivers of service (Dkt. No. 28) and most recently filed a “Proof

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of Service” indicating that the “Complaint and Request for Injunction” were mailed to

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Defendants. (Dkt. No. 31.)

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Defendants bring this motion seeking dismissal on pursuant to FRCP 4(m), and FRCP

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12(b)(2) and (b)(5) (lack of personal jurisdiction); FRCP 12(b)(1) (lack of subject matter

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jurisdiction); and FRCP 12(b)(6) (failure to properly state a claim). Plaintiff has filed no

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response to the motion.

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Discussion

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Lack of personal jurisdiction

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This matter was originally filed on July 25, 2017 (Dkt. No. 5), and an amended complaint

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was filed on August 17, 2017. Dkt. No. 12. FRCP 4(m) states that Plaintiff must serve

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Defendants within 90 days following filing of a complaint, or be subject to dismissal without

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prejudice. Despite being given multiple opportunities to properly serve Defendants (see Dkt.

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Nos. 26, 28, and 30), Plaintiff has failed to establish proper, timely proof of service in

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compliance with FRCP 4. Nor has she obtained and filed waivers of service from those parties.

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See Case Nos. 2:16-cv-1544 and 2:17-cv-415, both dismissed.

ORDER OF DISMISSAL - 2

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The result is that this Court is unable to exercise personal jurisdiction over any of the

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defendants. In conformity with FRCP 4(m) (having given Plaintiff multiple opportunities to

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cure), the Court is required to dismiss her action.

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Lack of subject matter jurisdiction

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A federal district court has original jurisdiction of all civil actions where the amount in

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controversy is greater than $75,000 and the dispute arises between citizens of different states. 28

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U.S.C. § 1332(a)(1). Plaintiff does not claim diversity as a basis for jurisdiction in this suit. Dkt.

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No. 12, Amended Complaint at 3.

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She asserts, rather, federal question jurisdiction, which requires that the lawsuit arise

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under the “Constitution, laws or treaties of the United States.” 28 U.S.C. § 1331. Her complaint

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alleges that she is asserting claims under “USC 1331-1446 & including all Article III

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Constitution Elements.” (Dkt. No. 12 at 3.) Section 1331-1446 of 28 U.S.C. are solely

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concerned with jurisdiction, venue and removal and do not qualify as a substantive basis for

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“federal question” jurisdiction. Article III is similarly concerned with jurisdictional, not

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substantive, matters and provides no basis for this case to proceed under “federal question”

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jurisdiction.

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Plaintiff also alleges a due process violation under the federal Constitution for

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“fraudulent banking and mortgage procedures” including “fraud, negligence, malfeasance, and

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misrepresentation.” (Id. at 5.) This Court concurs with another judge in this district who found

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nearly-identical claims by Plaintiff to be “generally grounded in state law” without a

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corresponding federal law to support them. See Blanchard v. N. Cascade Tr. Svcs., No. C16-

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1544JLR, 2017 U.S. Dist. LEXIS 22456, at *2-3 (W.D. Wash. Feb. 16, 2017).

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ORDER OF DISMISSAL - 3

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As this is the third lawsuit in which Plaintiff has plead similar claims and failed to

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conform them to the requirements of federal jurisdiction, the Court finds that it would be futile to

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allow her to attempt to amend them.

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Failure to state a claim upon which relief may be granted

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FRCP 12(b)(6) permits a court to dismiss a cause of action or a complaint for “failure to

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state a claim upon which relief can be granted.” “Threadbare recitals of the elements of a cause

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of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 674 (2009).

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A review of Plaintiff’s complaint reveals a complete absence of any factual allegations

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that would comprise the basis for a valid federal claim. Plaintiff’s amended complaint is simply

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a recitation of legal conclusions based on her belief that Defendants have somehow harmed her.

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As in her previous lawsuits, she has provided no facts from which a court could conclude that her

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conclusions are correct and actionable. Plaintiff has failed to state a claim upon which relief can

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be granted in federal court.

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Conclusion
Defendants have established firm bases for dismissal under FRCP 4(m), FRCP

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12(b)(1),(b)(2) and (b)(5), and FRCP 12(b)(6). In light of Plaintiff’s extensive history of

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litigation (and dismissal) and her failure to respond to this set of dispositive motions, the Court

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feels fully justified in not only dismissing her action, but in dismissing it with prejudice.

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The clerk is ordered to provide copies of this order to Plaintiff and to all counsel.

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Dated: April 4, 2018.

A

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The Honorable Marsha J. Pechman
United States Senior District Court Judge

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ORDER OF DISMISSAL - 4