United States District Court, W.D. Washington, Seattle
PENSCO TRUST COMPANY CUSTODIAN FBO JEFFREY D. HERMANN, IRA ACCOUNT NUMBER 20005343, Plaintiff,
LORINA DELFIERRO, et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Motion to
Dismiss Defendant Delfierro's Counterclaims in this
action. Dkt. #33. Plaintiff argues that Defendant's
Counterclaims are barred by the doctrine of res
judicata. Id. Defendant filed a Response, but
the Court has stricken it as untimely. Dkts. #38, #39 and
#42. For the reasons set forth below, the Court now GRANTS
filed the instant action in King County Superior Court on
November 14, 2016, seeking a judicial foreclosure on Ms.
Delfierro's residential property. Dkt. #4. On December
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 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) False Claims. Dkt. #31 at
Counterclaims ¶ ¶ 4.1-4.23. Although difficult to
discern from the Amended Answer, Defendant alleges as the
bases for her Counterclaims that there is no effective chain
of title with respect to her property, that certain sums of
money have not been accounted for and have been taken
fraudulently, and that certain title documents have been
improperly re-sequenced. Id. Plaintiff now moves to
dismiss the Counterclaims as barred by the doctrine of
brings this motion pursuant to Federal Rule of Civil
Procedure 12(b)(6) for Plaintiff's failure to state a
claim upon which relief may be granted. On a motion to
dismiss for failure to state a claim under Rule 12(b)(6), all
allegations of material fact must be accepted as true and
construed in the light most favorable to the nonmoving party.
Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38
(9th Cir. 1996). However, the Court is not required to accept
as true a “legal conclusion couched as a factual
allegation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (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.” Id.
at 678. This requirement is met when the plaintiff
“pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Absent facial
plausibility, a plaintiff's claims must be dismissed.
Twombly, 550 U.S. at 570.
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
which it has taken judicial notice. See F.R.E. 201;
Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.
2007). Here, the Court takes judicial notice of and considers
herein the documents attached to Plaintiff's Request for
Judicial Notice, which are documents from prior judicial
proceedings directly affecting the instant matter. Dkt. #7
and Exhibits A-E thereto. The Court may properly take
judicial notice of documents such as these whose authenticity
is not contested, and which are proceedings in other courts
so long as those proceedings have a direct relation to the
matters at issue in the case before the Court. Allen v.
City of Los Angeles, 92 F.3d 842 (9th Cir. 1992) (noting
that a court “may take notice of proceedings in other
courts, both within and without the federal judicial system,
if those proceedings have a direct relation to matters at
issue.” (quoting United States ex rel. Robinson
Rancheria Citizens Council v. Borneo, 971 F.2d 244, 248
(9th Cir. 1992)), overruled in part on other grounds by
Acri v. Varian Assocs., 114 F.3d 999, 1000 (9th Cir.
doctrine of res judicata “bar(s) all grounds
for recovery which could have been asserted, whether they
were or not, in a prior suit between the same parties . . .
on the same cause 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 Cir.
2001) (“The doctrine is applicable whenever there is
(1) an identity of claims, (2) a final judgment on the
merits, and (3) identity or privity between parties.”)
(internal quotations omitted). The doctrine serves the
important public policy of providing “an end to
litigation” and ensures that “matters once tried
shall be considered forever settled as between the
parties.” Federated Dep't Stores, Inc. v.
Moitie, 452 U.S. 394, 401-02, 101 S.Ct. 2424, 69 L.Ed.2d
determine whether a subsequent lawsuit involves the same
causes of action as a prior suit, the Court must consider the
following four factors: (1) whether rights established by the
prior judgment would be impaired by prosecution of the second
action, (2) whether both actions present substantially the
same evidence, (3) whether both actions involve infringement
of the same right, and (4) whether both actions arise out of
the same transactional nucleus of facts. Costantini,
681 F.2d at 1201-02. Of these four factors, the last is most
important. Id. at 1202; see also Owens, 244
F.3d at 714 (“The central criterion in determining
whether there is an identity of claims between the first and
second adjudications is whether the two suits arise out of
the same transactional nucleus of facts.”) (internal