United States District Court, W.D. Washington, Seattle
DAVID T. GILCHRIST, Plaintiff,
FIRST NATIONAL BANK OF OMAHA, et al., Defendants.
ORDER ON DEFENDANTS' RULE 12(B)(6) MOTION TO
J. Pechman United States District Judge
above-entitled court, having received and reviewed:
Defendants' Rule 12(b)(6) Motion to Dismiss (Dkt. No. 23)
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.
FURTHER ORDERED that Plaintiff's claims are DISMISSED
for Judicial Notice
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).
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.
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.)
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.
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.)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.
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.
February 9, 2017, Plaintiff filed the current litigation.
(Dkt. No. 1.) He has amended that complaint ...