Pensco Trust Company Custodian v. Del Fierro et al, No. 2:2016cv01926 - Document 48 (W.D. Wash. 2017)

Court Description: ORDER granting plaintiff/counter-defendant's 33 Motion to Dismiss Counterclaims signed by Judge Ricardo S Martinez.(RS) cc Delfierro
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Pensco Trust Company Custodian v. Del Fierro et al Doc. 48 1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 7 8 9 10 PENSCO TRUST COMPANY CUSTODIAN FBO JEFFREY D. HERMANN, IRA ACCOUNT NUMBER 20005343, Plaintiff, 11 12 13 v. LORINA DELFIERRO, et al., 14 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. C16-1926 RSM ORDER GRANTING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIMS 15 I. 16 17 INTRODUCTION This matter comes before the Court on Plaintiff’s Motion to Dismiss Defendant 18 Delfierro’s Counterclaims in this action. 19 Counterclaims are barred by the doctrine of res judicata. Id. Defendant filed a Response, but 20 Dkt. #33. Plaintiff argues that Defendant’s the Court has stricken it as untimely. Dkts. #38, #39 and #42. For the reasons set forth below, 21 22 the Court now GRANTS Plaintiff’s motion. II. 23 BACKGROUND 24 Plaintiff filed the instant action in King County Superior Court on November 14, 2016, 25 seeking a judicial foreclosure on Ms. Delfierro’s residential property. Dkt. #4. On December 26 27 28 16, 2016, Defendant Delfierro removed the action to this Court on the basis of diversity jurisdiction. Dkt. #1. Defendant subsequently filed an Amended Answer in this matter and ORDER PAGE - 1 1 2 alleged four Counterclaims against Plaintiff for: 1) Wire Fraud under 18 U.S.C. § 1343; 2) violations of 18 U.S.C. § 152; 3) violations of Washington’s Consumer Protection Act; and 4) 3 False Claims. Dkt. #31 at Counterclaims ¶ ¶ 4.1-4.23. Although difficult to discern from the 4 Amended Answer, Defendant alleges as the bases for her Counterclaims that there is no effective 5 chain of title with respect to her property, that certain sums of money have not been accounted 6 7 for and have been taken fraudulently, and that certain title documents have been improperly re- 8 sequenced. Id. Plaintiff now moves to dismiss the Counterclaims as barred by the doctrine of 9 res judicata. 10 11 12 III. DISCUSSION A. Legal Standards 13 1. 12(b)(6) Motions 14 Plaintiff brings this motion pursuant to Federal Rule of Civil Procedure 12(b)(6) for 15 Plaintiff’s failure to state a claim upon which relief may be granted. On a motion to dismiss for 16 failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as 17 18 true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 19 Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, the Court is not required to accept as true a 20 “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 21 22 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 23 24 Id. at 678. This requirement is met when the plaintiff “pleads factual content that allows the 25 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 26 Id. Absent facial plausibility, a plaintiff’s claims must be dismissed. Twombly, 550 U.S. at 570. 27 28 ORDER PAGE - 2 1 2 Though the Court typically limits its Rule 12(b)(6) review to allegations set forth in the Complaint (in this case, the Counter Complaint), the Court may also consider documents of 3 which it has taken judicial notice. See F.R.E. 201; Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th 4 Cir. 2007). Here, the Court takes judicial notice of and considers herein the documents attached 5 to Plaintiff’s Request for Judicial Notice, which are documents from prior judicial proceedings 6 7 directly affecting the instant matter. Dkt. #7 and Exhibits A-E thereto. The Court may properly 8 take judicial notice of documents such as these whose authenticity is not contested, and which 9 are proceedings in other courts so long as those proceedings have a direct relation to the matters 10 at issue in the case before the Court. Allen v. City of Los Angeles, 92 F.3d 842 (9th Cir. 1992) 11 12 (noting that a court “may take notice of proceedings in other courts, both within and without the 13 federal judicial system, if those proceedings have a direct relation to matters at issue.” (quoting 14 United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 971 F.2d 244, 248 (9th 15 Cir. 1992)), overruled in part on other grounds by Acri v. Varian Assocs., 114 F.3d 999, 1000 16 (9th Cir. 1997). 17 18 2. Res Judicata 19 The doctrine of res judicata “bar(s) all grounds for recovery which could have been 20 asserted, whether they were or not, in a prior suit between the same parties . . . on the same cause 21 22 of action.” Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982) (internal quotations omitted); see also Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th 23 24 Cir. 2001) (“The doctrine is applicable whenever there is (1) an identity of claims, (2) a final 25 judgment on the merits, and (3) identity or privity between parties.”) (internal quotations 26 omitted). The doctrine serves the important public policy of providing “an end to litigation” and 27 ensures that “matters once tried shall be considered forever settled as between the parties.” 28 ORDER PAGE - 3 1 2 Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 401-02, 101 S. Ct. 2424, 69 L. Ed. 2d 103 (1981). 3 To determine whether a subsequent lawsuit involves the same causes of action as a prior 4 suit, the Court must consider the following four factors: (1) whether rights established by the 5 prior judgment would be impaired by prosecution of the second action, (2) whether both actions 6 7 present substantially the same evidence, (3) whether both actions involve infringement of the 8 same right, and (4) whether both actions arise out of the same transactional nucleus of facts. 9 Costantini, 681 F.2d at 1201-02. Of these four factors, the last is most important. Id. at 1202; 10 see also Owens, 244 F.3d at 714 (“The central criterion in determining whether there is an identity 11 12 13 14 of claims between the first and second adjudications is whether the two suits arise out of the same transactional nucleus of facts.”) (internal quotations omitted). B. Defendant Delfierro’s Counterclaims 15 Ms. Delfierro has made a number of Counterclaims arising from her allegation that 16 Plaintiff/Counter-Defendant Pensco Trust has improperly re-recorded certain documents to 17 18 correct errors with the chain of title. Dkt. #31 at Counterclaim Facts, ¶ ¶ 3.1-3.16. Although 19 Ms. Delfierro recognizes that there has been prior litigation between the same parties involving 20 the same property which included chain of title issues, it appears she is now claiming that the re- 21 22 recording of documents after the prior litigation concluded has given rise to the instant Counterclaims. Id. 23 24 Defendant argues that all of the elements of res judiccata are met with respect to these 25 Counterclaims. Dkt. #33 at 6-9. First, it argues that the prior litigation involved substantially 26 the same claims. The Court agrees. Indeed, Ms. Delfierro’s Counterclaims in this litigation 27 continue to attack Plaintiff’s ownership of the mortgage note, and focus on alleged title defects. 28 ORDER PAGE - 4 1 2 Dkt. #31 at ¶ ¶ 3.6-3.14. Claims regarding Plaintiff’s ownership have already been litigated and resolved in Plaintiff’s favor. Dkt. #34, Exhibit E at sub-exhibit H. After hearing evidence and 3 argument in a bench trial, state court Judge Carol A. Schapira concluded that “PENSCO is the 4 beneficial owner of the Note and Deed of Trust with power and authority to enforce the same.” 5 Id. While the record reflects that multiple Assignments of Deeds of Trust were rerecorded in 6 7 2015 to “correct recording sequence,” Dkt. #34, Ex. E at sub-exhibits D, E and G, Judge Schapira 8 noted that the documents had not been recorded at the time of her decision, but reached the same 9 conclusion with respect to PENSCO’s interest in the Note. Id. (“Although this particular 10 Assignment of Deed of Trust has not yet been recorded, it remains valid between the signatories,” 11 12 . . . . “The Court finds Plaintiff has not proven there is any other claimant other than PENSCO 13 to the beneficial interest in her Note and Deed of Trust.”). Thus, the Court finds that even though 14 Ms. Delfierro focuses on the fact that some title documents were rerecorded after the prior 15 litigation concluded, the Counterclaims are still aimed at attacking whether PENSCO is the 16 beneficial owner of the Note. Further, the actions appear to present substantially the same 17 18 19 20 21 22 evidence, and arise out of substantially the same nucleus of facts. Accordingly, the first element if the doctrine of res judicata – identity of claims – is met. Moreover, there appears no dispute that the second and third elements – final judgment on the merits and identity or privity between parties – are also met. Accordingly, the Court agrees that the doctrine applies and Defendant Delfierro’s Counterclaims are hereby dismissed. 23 IV. 24 25 26 27 CONCLUSION Having reviewed Plaintiff/Counter-Defendant’s Motion to Dismiss (Dkt. #33), the documents in support thereof, and the remainder of the record, the Court hereby ORDERS: 1. Plaintiff/Counter-Defendant’s Motion to Dismiss (Dkt. #33) is GRANTED. 28 ORDER PAGE - 5 1 2. Defendant/Counter-Plaintiff Delfierro’s Counterclaims are DISMISSED in their entirety. 2 3 3. The parties’ motions for summary judgment remain pending and will be resolved by 4 5 separate Order in due course. DATED this 21st day of June 2017. 6 A 7 8 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER PAGE - 6