United States District Court, D. Hawaii
JULIE M. SIGWART, Individually and as Trustee of the Revocable Living Trust Dolphin Star Trust Dated December 10, 2003, Plaintiff,
U.S. BANK NATIONAL ASSOCIATION, also known as U.S. Bank N.A., a national banking association; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware corporation, Defendants.
ORDER DENYING PLAINTIFF'S APPEAL AND AFFIRMING
THE MAGISTRATE JUDGE'S SEPTEMBER 26, 2018 ORDER DENYING
PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED
E. Kobayashi United States District Judge
September 26, 2018, the magistrate judge issued an Order
Granting in Part and Denying in Part Plaintiff's Motion
for Leave to File First Amended Complaint (“9/26/18
Order”). [Dkt. no. 69.] On October 10, 2018, Plaintiff
Julie M. Sigwart, individually and as Trustee of the
Revocable Living Trust Dolphin Star Trust Dated December 10,
2003 (“Plaintiff”), filed an appeal from the
9/26/18 Order (“Appeal”). [Dkt. no. 72.]
Defendants U.S. Bank National Association and Mortgage
Electronic Registration Systems, Inc.
(“Defendants”) filed their memorandum in
opposition on October 30, 2018, and Plaintiff filed her reply
on November 13, 2018. [Dkt. nos. 75, 78.] The Court has
considered the Appeal as a non-hearing matter pursuant to
Rule LR7.2(e) of the Local Rules of Practice of the United
States District Court for the District of Hawai`i
(“Local Rules”). Plaintiff's Appeal is hereby
denied for the reasons set forth below.
relevant factual and procedural background of this case is
familiar to the parties, and the Court will only discuss the
portions relevant to the Appeal. The instant Appeal stems
from the Ninth Circuit's recent decision that, inter
alia, reversed in part this Court's order dismissing
all of Plaintiff's claims with prejudice. See
Memorandum, filed 11/8/17 (dkt. no. 42); Order Granting
Defs.' Motion to Dismiss Complaint, filed 3/31/14 (dkt.
no. 25) (“3/31/14 Order”); Order Dismissing
Remaining Claims With Prejudice, filed 6/17/14 (dkt. no. 32)
original complaint alleged Defendants had committed unfair or
deceptive acts and practices (“UDAP”), in
violation of Haw. Rev. Stat. § 480-2, based on four
separate theories: 1) Defendants scheduled the auction date
for her property less than twenty-nine days after it was
first advertised, in violation of Haw. Rev. Stat. §
667-7(a)(2) (“the 28-Day
Practice”); 2) Defendants did not publish notice of a
new sale date and time when they postponed the foreclosure
sale, in violation of the mortgage agreement and Haw. Rev.
Stat. § 667-5(a)(2) (“the Postponement
Practice”); 3) Defendants only advertised the sale of
the property by quitclaim deed, and not a warranty deed
(“the Quitclaim Practice”); and 4) Defendants
advertised the sale of the property in the County of Hawai`i,
instead of the County of Maui, where the property was located
(“the Hawai`i County Publication”). See
3/31/14 Order, 2014 WL 1322813, at *2, *3 n.4.
ruling on Plaintiff's appeal, the Ninth Circuit
considered the Hawai`i Supreme Court's recent decision in
Hungate v. Law Office of David B. Rosen, 139 Hawai`i
394, 391 P.3d 1 (2017). Sigwart, 713 Fed.Appx. at
538. In Hungate, the Hawai`i Supreme Court held it
was unfair and deceptive for a mortgagee to: fail to schedule
an auction date for the property at least twenty-nine days
after the sale was first advertised, in violation of §
667-7(a)(2); or fail to postpone the foreclosure sale without
publishing notice of the new date and time in violation of
the mortgage agreement and § 667-5(a)(2).
Hungate, 139 Hawai`i at 411-12, 391 P.3d at 18-19.
Based on Hungate, the Ninth Circuit reversed this
Court's ruling as to Plaintiff's UDAP claims with
respect to the 28-Day and Postponement Practices, but
affirmed this Court's dismissal with prejudice of
Plaintiff's remaining UDAP claims. The Ninth Circuit also
rejected Plaintiff's argument that, in her original
complaint, Plaintiff had properly alleged a claim for
wrongful foreclosure, which this Court allegedly failed to
rule on. Sigwart, 713 Fed.Appx. at 538-39. In doing
so, the Ninth Circuit stated:
While the Complaint does not specifically mention wrongful
foreclosure, [Plaintiff] argues for the first time on appeal
she has stated a claim based on her allegation that she was
“entitled [to relief] under any and all
applicable tort or recovery theories.”
Complaint ¶ 65 (emphasis added). Such
“[c]onclusory allegations of law, however, are
insufficient to defeat a motion to dismiss.” Lee v.
City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001)
(citation omitted). And the district court did not abuse its
discretion here in dismissing the Complaint with prejudice,
where [Plaintiff] failed to file a motion for leave to amend
her Complaint to add the claim and failed to assert it below.
See Cervantes v. Countrywide Home Loans, Inc., 656
F.3d 1034, 1043 (9th Cir. 2011).
Id. (some alterations in mem. dispo.).
30, 2018, Plaintiff filed her Motion for Leave to File First
Amended Complaint (“Leave Motion”) to reallege
and clarify her wrongful foreclosure claim, and conform her
proposed first amended complaint to the Ninth Circuit's
decision as to Plaintiff's UDAP claims based on the
28-Day and Postponement Practices. See Pltf.'s
Mem. in Supp. of Leave Motion, filed 6/30/18 (dkt. no. 59-1),
at 1. In denying Plaintiff leave to add her foreclosure
claim, the magistrate judge found, inter alia, that
this Court had previously dismissed all of Plaintiff's
claims with prejudice, and the Ninth Circuit affirmed this
decision; therefore, the law of the case precluded Plaintiff
from realleging her wrongful foreclosure claim. [9/26/18
Order at 4.]
instant Appeal, Plaintiff asserts the magistrate judge erred
in denying her request to reallege, support, or clarify her
wrongful foreclosure claim because this claim falls under at
least one of the exceptions to the law of the case doctrine.
Plaintiff also asserts the magistrate judge failed to address
Defendants' alleged violation of the Rules of the Supreme
Court of the State of Hawai`i, Rule 6, by their counsel of
record, Dentons U.S. LLP (“Dentons”).
Appeal of a Magistrate Judge's Order
district court has stated:
Pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of
Civil Procedure 72(a), and LR 74.1, any party may appeal to
the district court any pretrial nondispositive matter
determined by a magistrate judge. Such an order may be
reversed by the district court judge only when it is
“clearly erroneous or contrary to law.” 28 U.S.C.
§ 636(b)(1)(A); LR 74.1. An order is “contrary to
law” when it “fails to apply or misapplies
relevant statutes, case law, or rules of procedure.”
Akey v. Placer Cty., 2017 WL 1831944, at *10 (E.D.
Cal. May 8, 2017) (citation and quotation marks omitted). And
an order is “clearly erroneous” if, after review,
the court has a “definite and firm conviction that a
mistake has been committed.” Easley v.
Cromartie, 532 U.S. 234, 242 (2001); Fisher v.
Tucson Unified Sch. Dist., 652 F.3d 1131, 1136 (9th Cir.
2011); Cochran v. Aguirre, 2017 WL 2505230, at *1
(E.D. Cal. June 9, 2017) (citing cases). “[R]eview
under the ‘clearly erroneous' standard is
significantly deferential.” Concrete Pipe &