Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gramercy Group Inc. v. D.A. Builders, LLC

United States District Court, D. Hawaii

November 26, 2018

GRAMERCY GROUP, INC., Plaintiff,
v.
D.A. BUILDERS, LLC aka D.A. BUILDERS; DAVID A. ALCOS III; JOHN DOES 1-20; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; OTHER ENTITIES 1-10, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS WITH PREJUDICE COUNT IX OF THE FIRST AMENDED COMPLAINT

          JILL A. OTAKE, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff 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.

         DISCUSSION

         Plaintiff 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.

         Defendants 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.

         A. Federal Rule of Civil Procedure 12(b)(1)

         As a 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).

         A court 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.

         B. Federal Rule of Civil ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.