United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane, United States District Judge
Wells Fargo Bank moves to dismiss Plaintiff Steve
Munson's First Amended Complaint (“FAC”) with
prejudice and without leave to amend, pursuant to
Fed.R.Civ.P. 12(b)(1) and (6). Def.'s Mot. to Dismiss 1,
ECF No. 17. In support of its motion, Defendant asks the
Court to take judicial notice of eight proffered exhibits, as
well as a number of previously judicially noticed documents
and related exhibits. Def.'s Request for Judicial Notice,
ECF No. 18; see also Op. and Order 3-5, ECF No. 7.
Because Plaintiff's FAC fails to state a claim upon which
relief may be granted and faces standing, preclusion, and
statute of limitations issues, this Court GRANTS
Defendant's Motion to Dismiss.
detailed rendering of the facts of this case is set forth in
the Opinion and Order granting Defendant's first Motion
to Dismiss. See Op. and Order 2. For the purposes of
this Opinion and Order, the notable facts are as follows.
Plaintiff failed to pay on a loan he obtained from Wells
Fargo on or about October 7, 2008 and went into default on
February 1, 2011. Wells Fargo then started the process for
non-judicial foreclosure. Plaintiff brought this action in
state court on April 9, 2018. Wells Fargo removed the action
to federal court on April 17, 2018. This Court dismissed
Plaintiff's fraud claims without prejudice on June 11,
2018. Op. and Order 6-7. Plaintiff was granted the
opportunity to amend his complaint and re-state his fraud
claims with specificity. Plaintiff filed his FAC on August
10, 2018. ECF No. 13. Defendant now moves to dismiss
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain sufficient factual matter that
“state[s] a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is plausible on its face when
the factual allegations allow the court to infer the
defendant's liability based on the alleged conduct.
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The
factual allegations must present more than “the mere
possibility of misconduct.” Id. at 678.
considering a motion to dismiss, the court must accept all
allegations of material fact as true and construe those facts
in the light most favorable to the non-movant, Burget v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663
(9th Cir. 2000), but the court is “not bound to accept
as true a legal conclusion couched as a factual allegation,
” Twombly, 550 U.S. at 555. If the complaint
is dismissed, leave to amend should be granted unless the
court “determines that the pleading could not possibly
be cured by the allegation of other facts.” Doe v.
United States, 58 F.3d 494, 497 (9th Cir. 1995).
Defendant's Request for Judicial Notice
preliminary matter, Defendant requests that this Court take
judicial notice of eight items:
Notice and Motion for Relief from Stay filed by Wells Fargo
Bank, N.A. in Stephen Miles Munson Bankruptcy No.
10-39795-tmb (“Munson bankruptcy”), dated
November 23, 2010 (ECF No. 18-1); Stipulated Order Granting
Relief from Stay to Wells Fargo Bank, N.A. filed in Munson
bankruptcy, dated April 29, 2011 (ECF No. 18- 2);
Debtor's Objection to Committee of Unsecured
Creditors' Second Amended Plan filed in Munson
bankruptcy, dated May 28, 2013 (ECF No. 18-3); Order Granting
Summary Judgment, Denying Discharge, and Denying Motion to
Strike filed in Vulcan Power Company v. Munson Adversary No.
11-03366.tmb (“Munson adversary”), dated October
21, 2013 (ECF No. 18-4); portions of the Order Confirming
Committee of Unsecured Creditors' Second Amended Plan of
Liquidation in Munson bankruptcy, dated April 18, 2013 (ECF
No. 18-5); Order Approving Disclosure Statement and Fixing
Time for Filing Acceptances or Rejections of Plan and Notice
of Confirmation Hearing in Munson bankruptcy, dated April 22,
2013 (ECF No. 18-6); Order of Dismissal of Appeal filed in
Munson bankruptcy, dated February 4, 2014 (ECF No. 18-7); and
Order of Dismissal filed in Munson adversary, dated April 29,
2014 (ECF No. 18-8). See Def.'s Request for
material outside of the pleadings may not be considered in
ruling on a motion to dismiss unless the motion is treated as
one for summary judgment and the parties are “given
reasonable opportunity to present all materials made
pertinent to such motion by Rule 56.” Jacobson v.
AEG Capital Corp., 50 F.3d 1493, 1496 (9th Cir. 1995).
there are several exceptions to this general rule. First, a
court may take judicial notice of “matters of public
record, ” under Federal Rule of Evidence 201, so long
as the facts contained therein are not subject to reasonable
dispute. Lee v. City of Los Angeles, 250 F.3d 668,
688-90 (9th Cir. 2001); Santa Monica Food not Bombs v.
City of Santa Monica, 450 F.3d 1022, 1025 (9th Cir.
2006). Second, a court may take judicial notice of material
incorporated into a complaint in order to develop its
understanding of facts and inferences contained within the
body of the complaint that are drawn from those incorporated
materials. Coto Settlement v. Eisenberg, 593 F.3d
1031, 1038 (9th Cir. 2010). Third, courts may properly
notice, for the purpose of jurisdictional determinations,
facts that are not subject to reasonable dispute that come
from sources whose accuracy cannot be reasonably questioned.
Green v. U.S., 630 F.3d 1245, 1248 (9th Cir. 2011).
notice request is appropriate with respect to Exhibits 1
through 8 because they are true and correct copies of a
United States Bankruptcy Court judicial record in a case
filed by Plaintiff on his own behalf. These documents
“can be accurately and readily determined from sources
whose accuracy cannot be reasonably questioned, ”
see Fed. R. Evid. 201(b)(2), and their authenticity
is not subject to reasonable dispute, see Lee v. City of