-VCF McKinnon et al v. NDEX West, LLC, No. 2:2012cv00329 - Document 43 (D. Nev. 2012)
Court Description: ORDER Granting 26 Motion to Dismiss and 28 Motion to Expunge Lis Pendens. Denying 25 Motion to reconsider order on temporary restraining order and 33 Motion to stay hearing defendants dispositive motions until the original note is disclosed. The clerk of court shall close the above-captioned case and enter final judgment accordingly. Signed by Judge James C. Mahan on 6/19/2012. (Copies have been distributed pursuant to the NEF - SLR)
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-VCF McKinnon et al v. NDEX West, LLC Doc. 43 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 THOMAS MCKINNON and GERI MCKINNON, 2:12-CV-329 JCM (VCF) 9 Plaintiffs, 10 11 v. 12 ONEWEST BANK, FSB, et al., 13 Defendants. 14 15 ORDER 16 Presently before the court is defendants NDEX West, LLC, et. al.’s motion to dismiss the 17 amended complaint. (Doc. #26). Pro se plaintiffs Geri and Thomas McKinnon filed an opposition. 18 (Doc. #36). Defendants then filed a reply. (Doc. #41). Also before the court are plaintiff’s motion 19 to reconsider order on temporary restraining order (doc. #25) and motion to stay hearing defendants’ 20 dispositive motions until the original note is disclosed (doc. #33), and defendants’ motion to 21 expunge lis pendens (doc. #28). 22 This is the second lawsuit between these same parties; it involves the same property and the 23 same alleged wrongful conduct. Compare McKinnon, et. al. v. IndyMac Bank F.S.B., et. al., case 24 number 2:11-cv-607-KJD-GWF and McKinnon, et. al. v. NDEX West, LLC, case number 2:12-cv- 25 329-JCM-VCF. On January 23, 2012, United States District Court Judge Dawson entered an order 26 dismissing plaintiffs’ first lawsuit on the merits. (McKinnon, et. al. v. IndyMac Bank F.S.B., et. al., 27 case number 2:11-cv-607-KJD-GWF, Doc. #47). One month later, plaintiffs filed the instant 28 James C. Mahan U.S. District Judge Dockets.Justia.com 1 lawsuit. (McKinnon, et. al. v. NDEX West, LLC, case number 2:12-cv-329-JCM-VCF, Doc. #1). 2 Like the first lawsuit filed by plaintiffs, the property at issue in this case is located at 6208 3 Sweetbriar Court, Las Vegas, Nevada. (Doc. #14). Plaintiffs filed their second lawsuit on February 4 29, 2012. (Doc. #1). On March 22, 2012, defendant NDEX West, LLC filed a motion to dismiss. 5 (Doc. #7). Plaintiffs then filed an amended complaint on April 9, 2012. (Doc. #14). On April 16, 6 2012, the court denied NDEX West’s motion to dismiss as moot. (Doc. #15). Plaintiffs moved for 7 a temporary restraining order on May 1, 2012. (Doc. #16). The court denied the motion for 8 temporary restraining order, finding that plaintiffs had not demonstrated a likelihood of success on 9 the merits because the motion did not address plaintiffs’ prior lawsuit and the preclusive effect it may 10 have on this case. (Doc. #21). 11 The instant motion to dismiss asserts that the court should dismiss the complaint on three 12 independent legal grounds. First, the instant lawsuit is barred by the doctrine of claim preclusion. 13 Second, the complaint fails to state a claim upon which relief can be granted. Third, plaintiffs’ Fair 14 Debt Collection Practices Act claim is barred by the applicable statute of limitations. (Doc. #26). 15 Claim preclusion “bars litigation in a subsequent action of any claims that were raised or 16 could have been raised in the prior action.” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 17 708, 713 (9th Cir. 2001) (quoting Western Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th 18 Cir. 1997)). The doctrine applies when there is: (1) an identity of claims, (2) a final judgment on the 19 merits, and (3) identity or privity between the parties. Id. “The central criterion in determining 20 whether there is an identity of claims between the first and second adjudications is whether the two 21 suits arise out of the same transactional nucleus of facts.” Frank v. United Airlines, Inc., 216 F.3d 22 845, 851 (9th Cir. 2000) (internal quotations omitted). 23 The instant case is barred by the doctrine of claim preclusion. All three of the elements 24 required for claim preclusion exist in this case. First, there is an identity of claims because the “two 25 suits arise out of the same transactional nucleus of facts.” Frank, 216 F.3d at 851. Both of these 26 lawsuits arise out of a dispute over defendants’ authority and ability to foreclose on plaintiffs’ 27 residence. Second, there was a final adjudication on the merits in the first lawsuit – Judge Dawson 28 James C. Mahan U.S. District Judge -2- 1 entered an order dismissing the first lawsuit on the merits on January 23, 2012. (McKinnon, et. al. 2 v. IndyMac Bank F.S.B., et. al., case number 2:11-cv-607-KJD-GWF, Doc. #47). Third, the parties 3 are the same in the first and second actions. Accordingly, dismissal of this second action is 4 appropriate pursuant to the doctrine of claim preclusion. 5 After plaintiffs filed their motion to stay hearing defendants’ dispositive motions until the 6 original note is disclosed (doc. #33), defendants filed a notice of offer of proof, stating that the 7 original note and the original deed of trust are available for viewing at defendants’ counsel’s law 8 office in Las Vegas (doc. #42). Therefore, plaintiff’s motion to stay is moot. 9 10 Similarly, in light of the court’s ruling on defendants’ motion to dismiss, plaintiffs’ motion to reconsider order on temporary restraining order (doc. #25) is moot. 11 Accordingly, 12 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants NDEX West, 13 LLC, et. al.’s motion to dismiss the amended complaint (doc. #26) be, and the same hereby is, 14 GRANTED. 15 16 IT IS FURTHER ORDERED that defendants’ motion to expunge lis pendens (doc. #28) be, and the same hereby is, GRANTED. 17 IT IS FURTHER ORDERED that pro se plaintiffs Geri and Thomas McKinnon’s motion to 18 reconsider order on temporary restraining order (doc. #25) and motion to stay hearing defendants’ 19 dispositive motions until the original note is disclosed (doc. #33) be, and the same hereby are, 20 DENIED as moot. 21 22 23 IT IS FURTHER ORDERED that the clerk of court shall close the above-captioned case and enter final judgment accordingly. DATED June 19, 2012. 24 25 UNITED STATES DISTRICT JUDGE 26 27 28 James C. Mahan U.S. District Judge -3-
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