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Gelinas v. U.S. Bank, N.A.

United States District Court, W.D. Washington, Seattle

March 7, 2017

DAVID R. GELINAS, et al., Plaintiffs,
v.
U.S. BANK, NA, et al., Defendants.

          ORDER OF DISMISSAL

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the court is Plaintiffs David. R, Gelinas and Karen M. Gelinas's (collectively, "the Gelinases") response to the court's order to show cause for failure to serve certain defendants pursuant to Federal Rule of Civil Procedure 4(m). (Resp. (Dkt. # 16).) For the reasons set forth below, the court denies the Gelinases' motion for reconsideration, dismisses the Gelinases' claims against Defendants U.S. Bank Trust, NA ("U.S. Bank"), Caliber Home Loans, Inc. ("Caliber Home"), and Quality Loan Service Corporation of Washington ("Quality Loan") (collectively, "Moving Defendants") with prejudice, and dismisses the Gelinases' claims against Defendants Deutsche Bank National Trust Company ("Deutsche Bank"), Long Beach Mortgage Loan Trust 2006-10, JPMorgan Chase Bank ("JPMorgan"), and Does 1-10 (collectively, "Remaining Defendants") without prejudice.

         II. BACKGROUND

         On September 16, 2016, the Gelinases filed their pro se lawsuit against U.S. Bank, Quality Loan, JPMorgan, Long Beach Mortgage Loan Trust 2006-10, Deutsche Bank, Caliber Home, and Does 1-10. (See Compl. (Dkt. # 1).) The Gelinases alleged a claim to quiet title, a slander of title claim, and violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. (Id. ¶¶ 19-41.) The Gelinases sought declaratory relief and "compensatory, special, general[, ] and punitive damages." (Id. ¶ 14.)

         On October 17, 2016, Moving Defendants moved for dismissal under Federal Rule of Civil Procedure 12(b)(6). (1st Mot. (Dkt. # 8); 2d Mot. (Dkt. # 10).) On February 10, 2017, the court granted those motions. (2/10/17 Order (Dkt. # 15).) The court concluded that the Gelinases had failed to state a claim against U.S. Bank, Caliber Home, and Quality Loan for quiet title, slander of title, and violations of the FDCPA. (Id. at 19, 21-22.) However, the court granted the Gelinases leave to amend their claims against Moving Defendants because the court determined that it was possible the Gelinases could remedy the pleading deficiencies in their complaint. (Id. at 20.) The court gave the Gelinases until March 2, 2017, to amend their complaint and cautioned the Gelinases that failure to timely amend could result in the court dismissing their claims against Moving Defendants with prejudice. (Id.)

         The court further stated that although the parties had not raised the issue, it appeared as though Remaining Defendants had not been served. (Id. at 21.) Accordingly, the court ordered the Gelinases to show cause in a separate filing no later than March 2, 2017, why their claims against Remaining Defendants should not be dismissed without prejudice for failure to comply with Federal Rule of Civil Procedure 4(m). (Id.)

         The Gelinases' deadline to file an amended complaint and a response to the court's order to show cause was March 2, 2017. (See id.) On February 27, 2017, the Gelinases filed their response to the court's order. (See Resp.) The Gelinases have not, however, filed an amended complaint. (See generally Dkt.)

         III. ANALYSIS

         A. Motion to Reconsider

         In their response, the Gelinases reassert that "their claims against Defendants U.S. Bank, Caliber Home, and Quality Loan should not be dismissed" (Resp. at 1) and request that the court deny Moving Defendants' motions to dismiss (id. at 2, 8). Notably, the Gelinases' filing does not address service upon Remaining Defendants and does not purport to be an amended complaint, although the Gelinases state that they plan to file an amended complaint by the court's March 2, 2017, deadline. (See generally id.; see also Id. at 8 ("Plaintiffs will file their Amended Complaint within the time specified by the [c]ourt in its [o]rder, dated February 10, 2017.").) Because the court must construe pro se filings liberally, Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990), the court construes the Gelinases' filing as a motion for reconsideration of the court's February 10, 2017, order of dismissal.

         "Motions for reconsideration are disfavored." Local Rules W.D. Wash. LCR 7(h)(1). The court will ordinarily deny such motions unless the moving party demonstrates (1) "a showing of manifest error in the prior ruling, " or (2) "a showing of new facts or legal authority which could not have been brought to the [court's] attention earlier with reasonable diligence." Id.

         The Gelinases have not made the required showing. The Gelinases do not argue manifest error in the court's prior ruling. (See generally Resp.); Local Rules W.D. Wash. LCR 7(h)(1). In addition, the Gelinases do not present "new facts or legal authority which could have been brought to the [court's] attention earlier with reasonable diligence." Local Rules W.D. Wash. LCR 7(h)(1). Indeed, the Gelinases reassert facts regarding transfer of deeds of trust and assignment that they raised in their complaint and in their opposition to the motions to dismiss. (Compare Resp. at 2-3, with Compl. ¶¶ 13, 15, 18, 28-29, 31-34, and 2/10/17 Order at 2-4.) In addition, the Gelinases cite numerous provisions of 12 U.S.C. § 2605 regarding servicing of mortgage loans and Section 404 of the Truth in Lending Act (see Resp. at 3-7), but they fail to state why they could not have brought this legal authority to the court's attention earlier or how this authority demonstrates that the Gelinases met their pleading burden in their initial complaint (see generally id, ). For these reasons, the court denies the Gelinases' motion for reconsideration.

         B. ...


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