United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION DISMISS
BENJAMIN H. SETTLE United States District Judge.
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:
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
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”).
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.
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.
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.
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).
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).
Effect of Kucherov I
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.”).
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