United States District Court, D. Hawaii
ORDER (1) GRANTING DEFENDANTS' MOTION TO DISMISS,
(2) DENYING DEFENDANTS' MOTION TO STRIKE; AND (3)
DISMISSING THE SECOND AMENDED COMPLAINT WITHOUT LEAVE TO
DERRICK K. WATSON UNITED STATES DISTIRCT JUDGE.
Donna Lynch, proceeding pro se, initiated this action more
than three years ago in State court. Despite that age, little
has occurred in this case during that significant period of
time. As but one example, the pleadings have yet to be
settled. That ends today. No. more extensions of time. No.
more opportunities to amend the operative complaint. No. more
excuses. Because Lynch, now on her Second Amended Complaint
(SAC), has still failed to cure the deficiencies in her
claims, as explained to her on previous occasions by this
Court, claims that are, in any event, barred by res judicata,
the SAC is DISMISSED. Moreover, because the SAC represents
Lynch's third attempt to plead claims in this action,
further leave to amend is DENIED.
the procedural background has been set forth, at length, in
the Court's prior orders, Dkt. Nos. 40, 68, the Court
picks up where it left off -- with its Order entered
September 6, 2017 (“the September 6, 2017
Order”), Dkt. No. 68. Therein, the Court granted
Defendants', Federal National Mortgage Association
(“Fannie Mae”), Countrywide Home Loans, Inc.
(“Countrywide”), and Bank of America, N.A.
(“BOA, ” and with Fannie Mae and Countrywide,
“Defendants”), motion to dismiss the First
Amended Complaint (FAC) with limited leave to amend.
Specifically, Lynch was allowed leave to amend her (1) claim
of fraud concerning the 2010 foreclosure of the property
located at 66 Haku Hale Place, Lahaina, Hawai‘i 96761
(“the Property”), (2) claim of fraud concerning a
loan modification, and (3) claim for unfair and deceptive
practices under Hawai‘i Revised Statutes Chapter 480
(“UDAP”). The Court dismissed with prejudice,
and, thus, gave no leave to amend Lynch's (1) claim to
quiet title, (2) claims under the Real Estate Settlement
Procedures Act (RESPA), (3) claims under the Equal Credit
Opportunity Act (ECOA), and (4) claim of fraud concerning the
origination and recording of a loan/mortgage in 2007
(“the 2007 Mortgage”).
September 6, 2017 Order, Lynch was expressly forewarned that
she was being provided “one final attempt” to
cure the deficiencies with her claims. Dkt. No. 68 at 30.
October 6, 2017, Lynch filed a Second Amended Complaint
(SAC)-the operative pleading in this case. Dkt. No. 72. On
November 3, 2017, Defendants moved to dismiss the SAC on
various grounds, including the failure to state a claim
and/or plead fraud with particularity (“the Motion to
Dismiss”). Dkt. No. 76-1. A hearing on the Motion to
Dismiss was initially scheduled for January 5, 2018. Dkt. No.
hearing, however, never took place because, since the filing
of the Motion to Dismiss, this case has essentially been on a
substantive, but not a procedural, pause. With a hearing
scheduled for January 5, 2018, Lynch's response to the
Motion to Dismiss was due on December 15, 2017. See
Local Rule 7.4. On December 13, 2017, Lynch filed her first
motion for extension of time to respond to the Motion to
Dismiss, citing injuries and the potential that an attorney
might represent her in this action. Dkt. No. 85. The Court
granted the first motion for an extension, vacated the
January 5, 2018 hearing, and gave Lynch until January 12,
2018 to file a response to the Motion to Dismiss. Dkt. No.
January 12, 2018, Lynch filed a second motion for extension
of time to respond to the Motion to Dismiss, citing, in
identical fashion, the reasons from the first motion for
extension. Dkt. No. 88. The Court granted in part the second
motion for extension, allowing Lynch until February 9, 2018
to file a response to the Motion to Dismiss. Dkt. No. 89.
February 2, 2018, Lynch filed a third motion for extension of
time to respond to the Motion to Dismiss, which, once again
and in almost identical fashion, cited injuries and the
potential for an attorney to appear on Lynch's behalf.
Dkt. No. 90. On this occasion, the Court requested a response
from Defendants, who objected to the extension Lynch sought.
Dkt. Nos. 91-92. A hearing was then held on Lynch's
motion for a third extension, at which the February 9, 2018
deadline to file a response to the Motion to Dismiss was held
in abeyance and the parties were permitted to submit briefs
on whether to conduct discovery with respect to Lynch's
request for extending said deadline. Dkt. No. 95. After
briefing was filed on the foregoing discovery matter, Dkt.
Nos. 96-97, and a hearing held, Dkt. No. 102, the Court
ordered limited discovery related to the medical reasons
Lynch had provided for her requested extensions, Dkt. No.
status conference was then held on August 6, 2018. Dkt. No.
124. Defendants informed that discovery was continuing on
Lynch's medical concerns and that a State appellate court
had issued an order and judgment in a proceeding involving
Defendants, Plaintiff, and the Property. Plaintiff,
meanwhile, renewed her request for a settlement conference.
The Court allowed the parties to contact the Magistrate Judge
for purposes of scheduling a settlement conference and
instructed Defendants to file a supplemental brief on the
issue of res judicata. On September 6, 2018, Defendants filed
a supplemental brief, arguing that all of Lynch's claims
were barred on the ground of res judicata. Dkt. No.
long after the August 6, 2018 status conference, Lynch sent
an email to the Court requesting that a writ of eviction
issued by a State court be set aside or, alternatively,
stayed until resolution of this case. Dkt. No. 127. The Court
declined to rule on the email because Lynch had failed to
make her requests through an appropriate channel. Dkt. No.
128. The Court noted, however, that Lynch's requests were
likely barred by at least two principles of federal law.
September 27, 2018, a series of settlement and/or status
conferences began before the Magistrate Judge. Dkt. No. 136.
These conferences continued through November 1, 2018, Dkt.
Nos. 139, 141-142, but, ultimately, did not end in settlement
of this case, see Dkt. No. 142.
November 6, 2018, this Court held another status conference
with the parties. Dkt. No. 143. The parties were instructed
to reach agreement on any remaining disputes with respect to
discovery on Plaintiff's medical concerns, and, if
necessary, to file briefs addressing any unresolved disputes.
Soon thereafter, the Court entered a Second Amended Rule 16
Scheduling Order in order to accommodate the delays in this
case. See Dkt. No. 144. Notably, trial was moved
from January 14, 2019 to September 9, 2019. Dkt. Nos. 84,
February 7, 2019, the Court held yet another status
conference with the parties. Dkt. No. 147. With discovery as
to Lynch's medical concerns appearing as complete as it
might become, the Court instructed Defendants to file a
response in opposition to Plaintiff's third motion for an
extension of time to respond to the Motion to Dismiss. Dkt.
No. 147. Defendants did so soon thereafter. Dkt. No. 152. The
Court then gave Lynch until March 19, 2019 to file a reply.
Dkt. No. 153. A reply was not and has not been filed.
March 27, 2019, the Court addressed the motion for a third
extension in a Minute Order. Dkt. No. 154. For the reasons
discussed therein, the Court denied the third motion for an
extension of time. The Court further instructed Lynch to file
an opposition to the Motion to Dismiss, the supplemental
brief, and the two requests for judicial notice by April 10,
2019. Id. On April 10, 2019, Lynch did not file a
reply to any of the foregoing filings. Instead, on that date,
Lynch filed a March 11, 2019 letter drafted by a physician
assistant at Maui Medical Group, Inc. that was not
accompanied by any specific request or document. Dkt. No.
155. The letter states that Lynch's “health has
deteriorated over the last 4 weeks” and she has been
advised to travel to California for evaluation and treatment.
The letter further states that Lynch “has an antibiotic
resistant infection in her right hand which is restricting
the functions of her right [hand]. She has a severe
antibiotic resistant infection in her upper respiratory
system. She has severe brain fog … [and] has abnormal
blood counts.” The letter also appears to request a
six-week extension of any filing deadlines following
Lynch's treatment in California, the date of which is
unknown. Defendants have filed a motion to strike
the letter or, alternatively, appoint a guardian ad litem on
Lynch's behalf (“the Motion to Strike”). Dkt.
there that the procedural history of this case ends. Before
going any further, in light of the most recent
filings-i.e., the letter dated March 11, 2019 and
the Motion to Strike-the Court believes it is necessary to
address the same. As mentioned, the letter appears to request
a six-week extension following the unknown completion of
Lynch's treatment. Put simply, that will not be
happening. As the March 27, 2019 Minute Order should have
made clear to Plaintiff, the Court's willingness to grant
any further extensions on the ground of medical concerns has
been thoroughly exhausted in this case. The Court
acknowledges, given the more proximate nature of the letter
dated March 11, 2019, that the medical concerns raised
therein may be of a more relevant ilk than the ones Plaintiff
raised in her third motion for an extension of time. The
Court's principal reason for giving these
“new” medical concerns no additional credence,
however, remains unchanged: as this Court has observed,
listened, and read, Lynch's conduct before the
undersigned-whether through conversation at numerous status
conferences or through writings in numerous filings-and in
the State proceeding between the same parties to this action,
demonstrates that Plaintiff is more than capable of pursuing
this case which she initiated. Never, whether in the filings
Plaintiff has made or in the words Plaintiff has spoken to
the undersigned, has this Court ever considered that Lynch
was unable to pursue this case. While the Court was prepared
to allow discovery to proceed in order to delve deeper into
Plaintiff's medical concerns, that process has run its
course, and, as explained in the March 27, 2019 Minute Order,
in a fashion showing that Plaintiff is able to litigate her
claims. Most striking in that regard are the numerous filings
Lynch has recently made in the State proceeding between these
same parties and involving the same Property. Some of those
filings are mentioned in the March 27, 2019 Minute Order.
See Dkt. No. 154 at 2. As Defendants assert in the
Motion to Strike, Lynch has now filed even more, see
Dkt. No. 156 at 4-5, all the while maintaining here that she
was “not medically stable enough to prepare or file
legal documents, ” see Dkt. No. 155. For the
reasons discussed, an assertion such as that simply no longer
passes muster with the Court. As a result, to the extent the
letter dated March 11, 2019 can be construed as a fourth
request to extend the time to respond to the Motion to
Dismiss, it is denied.
Defendants' request to appoint a guardian ad litem for
Plaintiff, the Court declines to do so. As just explained,
the Court has found, based upon the record before it,
including the personal observations the undersigned has made,
that Plaintiff is able to litigate her claims in this case.
As far as the Court is concerned, therefore, there is no need
for a guardian to be appointed to do the same. The fact that,
for more than 18 months, Plaintiff has not litigated the
substance of her claims does not change this decision.
context, this means the following. Currently pending before
the Court is the Motion to Dismiss. As with any movant,
Defendants will be required to show that they are entitled to
the relief they seek-dismissal of the SAC. The Court now
turns to that determination.
Rule of Civil Procedure 12(b)(6) authorizes the Court to
dismiss a complaint that fails “to state a claim upon
which relief can be granted.” Rule 12(b)(6) is read in
conjunction with Rule 8(a), which requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Pursuant to
Ashcroft v. Iqbal, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In addition, “the tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”
Id. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555). Rather, “[a] claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). Factual allegations that only permit the court
to infer “the mere possibility of misconduct” do
not show that the pleader is entitled to relief as required
by Rule 8(a)(2). Id. at 679.
may consider certain documents attached to a complaint, as
well as documents incorporated by reference in the complaint
or matters of judicial notice, without converting a Rule
12(b)(6) motion to dismiss into a motion for summary
judgment. United States v. Ritchie, 342 F.3d 903,
908-09 (9th Cir. 2003). As in prior orders, the Court takes
judicial notice of the pleadings, court orders, and other
public records that have been submitted in this case.
See Fed.R.Evid. 201(b); Lee v. City of Los
Angeles, 250 F.3d 668, 688-89 (9th Cir.
Pro Se Status
Lynch is proceeding pro se, the Court liberally construes her
filings. Eldridge v. Block, 832 F.2d 1132, 1137 (9th
Cir. 1987). With that in mind, “[u]nless it is
absolutely clear that no amendment can cure the defect . . .
a pro se litigant is entitled to notice of the
complaint's deficiencies and an opportunity to amend
prior to dismissal of the action.” Lucas v.
Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
may, however, deny leave to amend due to undue delay or
failure to cure deficiencies by amendments previously allowed
or where further amendment would be futile. E.g.,
Gardner v. Martino, 563 F.3d 981, 990 (9th Cir.
2009); Leadsinger, Inc. v. BMG Music Publ'g, 512
F.3d 522, 532 (9th Cir. 2008).
Motion to Dismiss, Defendants argue, among other things, that
the SAC should be dismissed for failure to state a claim, as
well as for asserting claims and adding defendants for which
leave to amend was not provided. In their supplemental brief,
Defendants argue that all of the claims in the SAC are
additionally barred by res judicata.
Leave to Amend
September 6, 2017 Order, the Court provided explicit and
clear instructions to Lynch as to which claims had been
dismissed without leave to amend and which had been
dismissed with leave to amend. As explained earlier,
Lynch was allowed leave to amend her (1) claim of fraud
concerning the 2010 foreclosure of the Property, (2) claim of
fraud concerning a loan modification, and (3) UDAP claim for
unfair and deceptive practices. The Court dismissed with
prejudice, and thus, gave no leave to amend Lynch's (1)
claim to quiet title, (2) claims under RESPA, (3) claims
under ECOA, and (4) claim of fraud concerning the origination
and recording of the 2007 Mortgage.
other words, Lynch was allowed leave to amend three
claims. In the SAC, Lynch asserts nine claims. In
addition, the SAC names two entities as defendants, Mortgage
Electronic Registration System (“MERS”) and
Fannie Mae as Trustee for Securitized Trust Fannie Mae
Guaranteed REMIC Pass-Through Certificates 2007-65 Trust
(“the Trust”), that were never named as
defendants in previous iterations of the complaint. The
September 6, 2017 Order did not provide Lynch with leave to
assert nine claims or to name two new defendants. The
only matters for which Lynch was
provided leave to amend was to cure the deficiencies
identified with the three claims identified above.
See Dkt. No. 68 at 29-30.
the SAC has cured those deficiencies will be addressed
below.As for the remaining claims, though, one
reason why the SAC must be dismissed, at least in part, is
because Lynch did not have leave to add new claims or
defendants. This fact would not change irrespective of
whether Lynch had filed a response to the Motion to Dismiss.
As a result, on this ground, all claims against MERS and the
Trust are subject to dismissal without leave to amend. As for
Defendants, the Court addresses each claim in the SAC in
first cause of action, Lynch asserts a claim of “Lack
of Standing/Wrongful Disclosure[.]” To the extent this
claim is not premised upon fraud, it constitutes a claim for
which Lynch was not provided leave to amend. Therefore,
except as to fraud, which will be discussed below, the first
claim is subject to dismissal without leave to amend.
second cause of action, Lynch asserts a claim of fraudulent
concealment. Although it is difficult to determine the nature
of the fraud with respect to this claim, it appears to
involve fraud in the origination of the 2007 Mortgage. As the
Court explained in the September 6, 2017 Order, though, any
such claims related to the 2007 Mortgage are time-barred,
and, as such, leave to amend was not ...