United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS OR,
IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT
E. KOBAYASHI, UNITED STATES DISTRICT JUDGE
September 6, 2016, Defendant CIT Bank, N.A., formerly known
as OneWest Bank N.A. (“Defendant”), filed its
Motion to Dismiss or, in the Alternative, for a More Definite
Statement (“Motion”). [Dkt. no. 30.] Pro se
Plaintiff Magdalena Marcos Pascua (“Plaintiff”)
filed her memorandum in opposition on September 19, 2016, and
Defendant filed its reply on November 7, 2016. [Dkt. nos. 36,
37.] On November 7, 2016, this Court issued an entering order
(“EO”) finding this matter suitable for
disposition without a hearing pursuant to Rule LR7.2(d) of
the Local Rules of Practice of the United States District
Court for the District of Hawai`i (“Local
Rules”). [Dkt. no. 38.] On December 7, 2016, Plaintiff
filed a document that this Court construed as an additional
memorandum in opposition to the Motion. [Dkt. nos. 41
(Plaintiff's document), 43 (EO construing document).]
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority,
Defendant's Motion is HEREBY GRANTED. This Court must
DISMISS Plaintiff's case WITH PREJUDICE because the
pending state court case regarding the same property at issue
in this case has priority.
January 15, 2016, Plaintiff filed her Complaint under 42
U.S.C. § 1981, Fifth, Ninth, and Fourteenth Amendment of
the U.S. Constitution and 18 U.S.C. § 1028
(“Complaint”). The Complaint alleges that
Defendant has filed an action in state court to foreclose on
Plaintiff's home (“Foreclosure Action”).
According to the Complaint, the borrower on the loan that
Defendant is trying to foreclose was Plaintiff's brother,
Napoleon J. Marcos (“Marcos”). Plaintiff alleges
that she purchased the house from Marcos for $200, 000, but
he subsequently obtained loans from Defendant totaling over
$500, 000 using Plaintiff's home as collateral. He used
the proceeds from the loan to flee to the Phillippines. His
whereabouts are currently unknown. [Complaint at ¶¶
3-5, 7.] Plaintiff alleges that Defendant has attempted a
wrongful foreclosure because: the property is in her name,
not Marcos's; she never obtained a loan from, or entered
into a contract with, Defendant; she has never been a
customer of Defendant's; and Defendant is attempting to
collect Marcos's debt from her under the guise of a
foreclosure. [Id. at ¶¶ 3, 6, 8-9.]
Complaint alleges the following claims: violation of
Plaintiff's “federal constitutional rights to
property” (“Count I”); [id. at
¶ 13;] and an unspecified claim alleging that
Defendant's actions caused Plaintiff to suffer
“mental anguish, emotional disturbance, stresses”
and caused her to incur damages, including incurring legal
fees (“Count II”) [id. at ¶ 14].
Plaintiff prays for the following relief: $500, 000 in
compensatory damages; $500, 000 in punitive damages; an
injunction precluding Defendant from pursing the Foreclosure
Action in state court; attorneys' fees and costs,
pursuant to 42 U.S.C. § 1988; and any other appropriate
relief. [Id. at pg. 1 & ¶¶ 15-19.]
instant Motion, Defendant urges this Court to dismiss the
Complaint: 1) based on the prior exclusive jurisdiction
doctrine; 2) based on the Colorado River abstension
doctrine; or 3) because both Counts I and II
fail to state any cognizable claims. In the alternative,
Defendant argues that this Court should order Plaintiff to
file a more definite statement, pursuant to Fed.R.Civ.P.
Request for Judicial Notice
filed a Request for Judicial Notice (“RJN”) on
September 6, 2016, and an errata to the RJN on December 19,
2016. [Dkt. no. 31.] Defendant asks this Court to take
judicial notice of the Complaint for Foreclosure
(“Foreclosure Complaint”) in the Foreclosure
Action - Onewest Bank, FSB v. Napoleon Javier Marcos, et
al., Civil No. 13-1-0439-02 - filed in the State of
Hawai`i First Circuit Court on February 14, 2013. [R]N, Exh.
A (Foreclosure Complaint).]
“must take judicial notice if a party requests it and
the court is supplied with the necessary information.”
Fed.R.Evid. 201(c)(2). “The court may judicially notice
a fact that is not subject to reasonable dispute because it .
. . can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Rule
201(b)(2). This district court has stated:
[T]he court may not take judicial notice of a matter of
public record in order to consider “the truth of the
facts recited therein.” See [Lee v. City
of Los Angeles, 250 F.3d 668');">250 F.3d 668, ] 690 [(9th Cir.
2001). The court may only take judicial
notice of the existence of the matter. See id.
(citing S. Cross Overseas Agencies, Inc. v. Wah Kwong
Shipping Grp. Ltd., 181 F.3d 410, 426-27 (3d Cir.
Matters of public record that may be judicially noticed
include . . . documents filed with courts, “both within
and without the federal judicial system, if those proceedings
have a direct relation to the matters at issue.”
United States v. Borneo, Inc., 971 F.2d 244, 248
(9th Cir. 1992). . . .
Bartolotti v. Maui Mem'l Med. Ctr., Civil No.
14-00549 SOM/KSC, 2015 WL 4545818, at *3 (D. Hawai`i July 28,
2015). This Court therefore GRANTS Defendant's RJN
insofar as this Court takes judicial notice of the filing of
the Foreclosure Complaint, but not the truth of the facts
recited therein. This Court also takes judicial notice of the
proceedings in the Foreclosure Action. See Rule
201(c)(1) (court may take judicial notice sua sponte).
Prior Exclusive ...