Kucherov v. MTC Financial Inc.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION DISMISS

          BENJAMIN H. SETTLE United States District Judge.

         This matter comes before the Court on Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. 16. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby rules as follows:

         I. BACKGROUND

         On January 25, 2017, Plaintiff filed his complaint in this action. Dkt. 3. This is the second time that Plaintiff has brought these very claims in relation to Defendants' foreclosure on the property at 1391 N.W. 7th Avenue, Camas, WA. In Kucherov v. MTC Financial, , Case No. 16-05276BHS (“Kucherov I”), the Court dismissed Plaintiff's claims, some with prejudice and some without. Kucherov I, Dkt. 23. The Court granted Plaintiff leave to amend those claims that were dismissed without prejudice. Id. After the deadline to amend had passed and Plaintiff had failed to amend his complaint, the Court entered judgment and closed the case. Id., Dkt. 24. Plaintiff's present complaint reasserts the claims from Kucherov I that were expressly dismissed without prejudice.

         Additionally, Plaintiff previously removed an unlawful detainer case that involved the same property before it was remanded to state court for lack of jurisdiction. See OWB REO, LLC v. Kucherov, C16-5565RBL (W.D. Wash. 2016), Dkts. 1, 4; OWB REO, LLC v. Kucherov, Clark Co. Case No. 16-2-01107-5 (“OWB REO”).

         On March 23, 2017, Defendants moved to dismiss Plaintiff's present complaint. Dkt. 16. On April 4, 2017, Plaintiff filed an overlength response to Defendants' motion, but did so in the wrong case. See Kucherov I, Dkt. 34.^[1] On May 3, 2017, Defendants filed a reply. Dkt. 18. On May 16, 2016, Plaintiff filed a surreply, which was labelled as another response. Dkt. 19.

         II. DISCUSSION

         A. Legal Standard

         Motions to dismiss brought under Fed.R.Civ.P. 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive a motion to dismiss, the complaint does not require detailed factual allegations but must provide the grounds for entitlement to relief and not merely a “formulaic recitation” of the elements of a cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.

         “As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (internal quotation marks omitted). However, the Court may consider documents beyond the complaint “if the documents' authenticity . . . is not contested and the plaintiff's complaint necessarily relies on them.” Id. (internal quotation marks omitted). Also, “under Fed.R.Evid. 201, a court may take judicial notice of matters of public record.” Id. at 689 (internal quotation marks omitted).

         In the event that dismissal is warranted, the Court will grant Plaintiff leave to amend unless amendment would be futile. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “[D]ismissal [without leave to amend] is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980).

         B. Effect of Kucherov I

         Defendant first seeks dismissal by arguing that this action is barred by the Court's previous order in Kucherov I denying Plaintiff's motion for relief from judgment. Dkt. 16 at pp. 6-7. See also Kucherov I, Dkt. 33. The Court notes that it was within the Court's power to dismiss Plaintiff's claims with prejudice pursuant to Fed.R.Civ.P. 41(b). See Yourish v. California Amplifier, 191 F.3d 983, 986 (9th Cir. 1999). However, the Court never did so. “The difference between a dismissal under Rule 12(b)(6) and one under Rule 41(b) is not merely formal.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). Had the Court dismissed Plaintiff's claims in Kucherov I pursuant to Rule 41(b), it could have determined that the claims should be dismissed with prejudice as a sanction for failure to timely prosecute the case. Alternatively, even in the order granting the motion to dismiss, the Court could have stated that failure to amend within the time established by the order would result in dismissal with prejudice. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064 (9th Cir. 2004) (after a plaintiff's failure to amend within 60 days “the district court should have taken the election not to amend at face value, entered a final judgment dismissing all claims with prejudice, and allowed the case to come to us on appeal in that posture.”).

         As it stands, the Court never informed Plaintiff that failure to file an amended complaint in Kucherov I would result in automatic dismissal with prejudice. The Court considers this inadequate to have placed Plaintiff, a pro se litigant, on notice that the automatic dismissal contemplated by the Court's order in Kucherov I would bar ...