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Gilchrist v. First National Bank of Omaha

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

January 8, 2018

DAVID T. GILCHRIST, Plaintiff,
v.
FIRST NATIONAL BANK OF OMAHA, et al., Defendants.

          ORDER ON DEFENDANTS' RULE 12(B)(6) MOTION TO DISMISS

          Marsha J. Pechman United States District Judge

         The above-entitled court, having received and reviewed:

         1. Defendants' Rule 12(b)(6) Motion to Dismiss (Dkt. No. 23)

         2. Plaintiff's Opposition to Defendants' Motion to Dismiss (Dkt. No. 27); 3. Defendants' Reply on rule 12(b)(6) Motion to Dismiss (Dkt. No. 28); all attached declarations and exhibits; and all relevant portions of the records, rules as follows: IT IS ORDERED that the Court GRANTS Defendants' request for judicial notice of the underlying litigation related to this matter.

         IT IS FURTHER ORDERED that Plaintiff's claims are DISMISSED with prejudice.

         Request for Judicial Notice

         While the Court may generally not consider any material outside the pleadings in an FRCP 12(b)(6) proceeding, pursuant to Fed.R.Evid. 201, judicial notice may be taken of ‘“documents whose contents are alleged in a complaint and whose authenticity no party questions, '… [and] matters of public record.” Phillips v. World Pub. Co., 822 F.Supp.2d 1114, 1117-18 (W.D. Wash. 2011).

         Accordingly, this Court grants Defendants' request that judicial notice be taken of documents filed in the underlying state cases (including Gilchrist v. First National Bank of Omaha, Cowlitz County District Court Cause No. 14-s-125) and a prior federal lawsuit (Gilchrist v. Patenaude & Felix, A.P.C., Case No. 14-5556-RJB, Western District of Washington). While Plaintiff disagrees with the legal theories advanced by Defendants in relation to these cases, he makes no objection that the submitted documents are not a proper subject of judicial notice.

         Background

         Plaintiff's complaint alleges that he was contacted multiple times during February and March of 2013 by Defendant First National Bank of Omaha (“the Bank”) regarding money which the Bank claimed was owed by him. (Dkt. No. 21, Second Amended Complaint (“SAC”), ¶¶ 6-10.) Following that, he alleges that the Bank retained Defendant Patenaude & Felix (“Patenaude, ” “PFMB”) as collection agents for the money. (SAC, ¶¶ 11-12.)

         On February 14, 2014, in Cowlitz County Superior Court, Patenaude filed a collection action against Plaintiff on the Bank's behalf (Cause No. 14-2-00156-9). (SAC, ¶ 12; Dkt. No. 24, Decl. of Rosenberg, Exs. 1-2.) On June 8, 2014, Plaintiff filed a small claims case in Cowlitz County District Court against the Bank (Cause No. 14-s-125), alleging a violation of the Telephone Consumer Protection Act (“TCPA”). A month later, he filed a federal lawsuit alleging that Patenaude had violated the Fair Debt Collection Practices Act (“FDCPA”) and the Fair Credit Reporting Act (“FCRA”). See Gilchrist v. Patenaude & Felix, et al., Case No. 14-5556-RJB.

         Gilchrist filed his “Answer, Affirmative Defenses, Counterclaims and Jury Demand” in the Cowlitz County Superior Court lawsuit on October 1, 2014. (Decl. of Rosenberg, Ex. 4.)[1]The Bank's suit against Gilchrist was resolved in the Bank's favor with a finding that he had assented to credit agreement with the Bank and owed a certain sum pursuant to that agreement. Gilchrist appealed that judgment to the Washington State Court of Appeals.

         On May 26, 2015, by joint motion, the federal claims related to events prior to that date were dismissed with prejudice. (C14-5556-RJB at Dkt. No. 17.) On October 18, 2016, the state Court of Appeals affirmed the Superior Court's grant of summary to the Bank. Gilchrist v. FNOB, 196 Wn.App. 1033.

         On February 9, 2017, Plaintiff filed the current litigation. (Dkt. No. 1.) He has amended that complaint ...


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