United States District Court, D. Hawaii
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS WITH
PREJUDICE COUNT IX OF THE FIRST AMENDED COMPLAINT
A. Otake, Judge.
Gramercy Group, Inc. (“Plaintiff”) moves to
dismiss with prejudice Count IX (Gramercy's Interest in
the Pledged Ewa Beach Property) of the First Amended
Complaint. At the November 20, 2018 continued hearing on the
parties' motions in limine, Plaintiff offered, for the
first time, to dismiss Count IX with prejudice. For the
reasons articulated below, the Court GRANTS the Motion
subject to certain conditions.
argues that Count IX should be dismissed with prejudice
pursuant to Federal Rule of Civil Procedure
(“FRCP”) 12(b)(1) because: 1) David Alcos
stipulated to the Fourth Amended Notice of Pendency of Action
(“NOPA”), but it was never recorded, which means
the NOPA is invalid and any ruling about Plaintiff's
interest in the subject property would exceed this
Court's jurisdiction; 2) World Business Lenders, LLC, an
unrelated third-party, initiated a foreclosure action
regarding the subject property and Plaintiff has not sought
to intervene; 3) the subject property is so encumbered by
other unrelated claims that any interest Plaintiff would have
had would be moot; and 4) although Mr. Alcos signed a
Guaranty purporting to pledge the subject property, he never
validly pledged it.
argue that Plaintiff's attempt to dismiss Count IX at
this late date evidences its bad faith in asserting the
claim. Although Defendants support dismissal, they request
that a number of conditions be imposed, including an award of
attorneys' fees and costs; permission to inform the jury
that Plaintiff sought to foreclose until 10 days before
trial; permission to discuss the NOPAs and their contents;
and permission to examine witnesses without limitation about
the dismissed claim.
Federal Rule of Civil Procedure 12(b)(1)
preliminary matter, the Court notes that Plaintiff
incorrectly relies on Federal Rule of Civil Procedure
(“FRCP”) 12(b)(1) as a basis to dismiss Count IX.
FRCP 12(b) provides:
(b) How to Present Defenses. Every defense to a claim for
relief in any pleading must be asserted in the responsive
pleading if one is required. But a party may assert the
following defenses by motion:
(1) lack of subject-matter jurisdiction;
A motion asserting any of these defenses must be made before
pleading if a responsive pleading is allowed. If a pleading
sets out a claim for relief that does not require a
responsive pleading, an opposing party may assert at trial
any defense to that claim. No. defense or objection is waived
by joining it with one or more other defenses or objections
in a responsive pleading or in a motion.
Fed. R. Civ. P. 12(b). “ If a party so moves, any
defense listed in Rule 12(b)(1)-(7)--whether made in a
pleading or by motion--and a motion under Rule 12(c) must be
heard and decided before trial unless the court orders a
deferral until trial.” Fed.R.Civ.P. 12(i).
must dismiss an action if at anytime it determines that it
lacks subject-matter jurisdiction. Fed.R.Civ.P. 12(h)(3).
“Although Rule 12(h)(1) permits a party to bring a Rule
12(b)(1) motion at any point and the court may consider
jurisdiction on its own motion under Rule 12(h)(3), nowhere
is it suggested that the opportunity to bring a Rule 12(b)(1)
motion is extended to the party presenting the claim in the
first place.” Feezor v. Excel Stockton, LLC,
No. CIV S 12-0156 KJM, 2013 WL 2485623, at *11 (E.D. Cal.
June 10, 2013). Thus, while a defendant may avail itself of
FRCP 12(b)(1), this provision does not provide a legal basis
for Plaintiff to request dismissal. Even if it did, the
purported invalidity of the Fourth Amended NOPA does not
affect the Court's subject matter jurisdiction with
respect to Count IX.
Federal Rule of Civil ...