United States District Court, D. Oregon
P. Laurick, Kilmer, Voorhees & Laurick, P.C., Of
Attorneys for Defendant(s).
and Homa Moradi, pro se.
OPINION AND ORDER
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE
Kambiz and Homa Moradi, representing themselves, alleged in
their original Complaint two claims for relief against
Defendants ReconTrust Company, N.A.
(“ReconTrust”), Bank of America, N.A.
(“BoA”), and the Bank of New York Mellon
“Defendants”), who moved to dismiss on the
grounds that Plaintiffs' claims were time-barred under
the applicable statutes of limitation. In an Opinion and
Order, the Court granted Defendants' motions but gave
Plaintiff leave to replead additional facts to attempt to
cure the statute of limitations deficiency. On August 21,
2017, Plaintiffs filed an Amended Complaint. Defendants again
move to dismiss Plaintiffs' Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, asserting
that Plaintiffs' claims are still time-barred by the
applicable statutes of limitation. Defendants also file a
request for judicial notice of several documents related to
Plaintiffs' home loan. Because Plaintiffs have failed to
cure the deficiencies in their original Complaint and because
it is clear to the Court that these deficiencies cannot be
cured by further amendment, Defendants' motion to dismiss
is granted, and this case is dismissed with prejudice.
Motion to Dismiss Under Rule 12(b)(6)
motion to dismiss for failure to state a claim may be granted
only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief.
Shroyer v. New Cingular Wireless Servs., Inc., 622
F.3d 1035, 1041 (9th Cir. 2010). In evaluating the
sufficiency of a complaint's factual allegations, the
court must accept as true all well-pleaded material facts
alleged in the complaint and construe them in the light most
favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012); Daniels-Hall v. Nat'l Educ. Ass'n,
629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a
presumption of truth, allegations in a complaint “may
not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). All reasonable inferences from the
factual allegations must be drawn in favor of the plaintiff.
Newcal Indus., Inc. v. Ikon Office Solution, 513
F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not,
however, credit the plaintiff's legal conclusions that
are couched as factual allegations. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009).
complaint must contain sufficient factual allegations to
“plausibly suggest an entitlement to relief, such that
it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Starr, 652 F.3d at 1216. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
Pro Se Filings
must liberally construe the filings of a pro se
plaintiff and afford the plaintiff the benefit of any
reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010). “‘Unless it is absolutely clear
that no amendment can cure the defect, . . . a pro se
litigant is entitled to notice of the complaint's
deficiencies and an opportunity to amend prior to dismissal
of the action.'” Garity v. APWU Nat'l Labor
Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in
original) (quoting Lucas v. Dep't of Corr., 66
F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under Rule
8(a)(2) of the Federal Rules of Civil Procedure, however,
every complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” This standard “does not require
‘detailed factual allegations'” but does
demand “more than an unadorned, the
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). “A pleading that offers ‘labels
and conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).
claims arise out of the foreclosure on Plaintiffs' home.
The following facts are alleged in Plaintiffs' Amended
Complaint and contained in documents of which the Court takes
The Foreclosure on Plaintiffs' Home
19, 2007, plaintiff Homa Moradi signed a promissory note (the
“Note”) and a deed of trust (the
“Deed”). The Deed listed Countrywide Home Loans,
Inc. dba America's Wholesale Lender (“AWL”)
as the lender, Fidelity National Title as the trustee, and
Mortgage Electronic Registration Systems, Inc.
(“MERS”), as the beneficiary “solely as a
nominee for Lender and ...