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Kenneth Knockum, An Individual v. Bac Home Loans Servicing

August 24, 2012

KENNETH KNOCKUM, AN INDIVIDUAL, PLAINTIFF,
v.
BAC HOME LOANS SERVICING, AND L.P.; RECONTRUST COMPANY, N.A.; FINDINGS AND RECOMMENDATIONS AND OFFICE OF CHARLES H. NOWSKI SUCCESSOR, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS CFO OF BANK OF AMERICA, DEFENDANTS.



ORDER

This matter came before the court on March 30, 2012, for hearing of defendants' motion to dismiss pro se plaintiff Kenneth Knockum's complaint. (Doc. No. 7.) Attorney Brendan F. Hug appeared telephonically for defendants Bank of America, N.A., ("BANA") and ReconTrust Company, N.A., ("ReconTrust"). Plaintiff Kenneth Knockum appeared in person at the hearing on his own behalf. Oral argument was heard, and the defendants' motion was taken under submission.

BACKGROUND

Plaintiff commenced this action by filing a complaint in the Solano County Superior Court on January 20, 2012. (Defs' Notice of Removal (Doc. No. 1-1), Ex. A.) Therein, plaintiff alleged causes of action against defendants BANA and ReconTrust ("defendants") for violations of Title 18 of the United States Code, 15 U.S.C. § 1692g, "RESPA, AND TILA." (Compl. (Doc. No. 1-1) at 7.*fn1 ) On February 17, 2012, defendants removed the matter to this court from the Solano County Superior Court pursuant to 28 U.S.C. § 1441. (Doc. No. 1.)

On February 29, 2012, defendants filed a motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and noticed that matter for hearing before the undersigned on March 30, 2012. (Doc. No. 7.) Plaintiff failed to file a timely opposition and on March 27, 2012, defendants filed a notice of statement of non-opposition.*fn2

(Doc. No. 8.)

Plaintiff did, however, appear at the noticed March 30, 2012 hearing of defendants' motion. The undersigned questioned plaintiff regarding his opposition, if any, to granting defendants' motion. Plaintiff stated that his opposition could be found in confidential documents which he requested be filed with the court under seal. Counsel for defendants stated his non-opposition to the court considering plaintiff's ex parte request to seal. Thereafter, the undersigned accepted plaintiff's documents for in camera review.

STANDARD

The purpose of a motion to dismiss pursuant to Rule 12(b)(6)*fn3 is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662,___, 129 S. Ct. 1937, 1949 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

In ruling on the motion, the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

ANALYSIS

Pursuant to Federal Rule of Civil Procedure 5.2(d), a court "may order that a filing be made under seal without redaction." However, even if a court orders an unredacted version of a document filed under seal, it may "later unseal the filing or order the person who made the filing to file a redacted version for the public record." Id. "Historically, courts have recognized a 'general right to inspect and copy public records and documents, including judicial records and documents.'" Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 & n.7 (1978)). The Ninth Circuit has addressed the standards governing motions to seal documents, explaining that:

Two standards generally govern motions to seal documents like the one at issue here. First, a "compelling reasons" standard applies to most judicial records. See Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (holding that "[a] party seeking to seal a judicial record ... bears the burden of ... meeting the 'compelling reasons' standard"); Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135-36 (9th Cir. 2003). This standard derives from the common law right "to inspect and copy public records and documents, including judicial records and documents." Kamakana, 447 F.3d at 1178 (citation and internal quotation marks omitted). To limit this common law right of access, a party seeking to seal judicial records must show that "compelling reasons supported by specific factual findings ... outweigh the general history of access and the public policies favoring disclosure." Id. at 1178-79 (internal quotation marks and citations omitted).

The relevant standard for purposes of Rule 26(c) is whether "'good cause' exists to protect th[e] information from being disclosed to the public by balancing the needs for discovery against the need for confidentiality." Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002). This "good cause" standard presents a lower burden for the party wishing to seal documents than the "compelling reasons" standard. The cognizable public interest in judicial records that underlies the "compelling reasons" standard does not exist for documents produced between private litigants. See Kamakana, 447 F.3d at 1180 (holding that "[d]ifferent interests are at stake with the right of access than with Rule 26(c)"); Foltz, 331 F.3d at 1134 ("When discovery material is filed with the court ... its status changes."). The "good cause" standard is not limited to discovery. In Phillips, we held that "good cause" is also the proper standard when a party seeks access to previously sealed discovery attached to a nondispositive motion. 307 F.3d at 1213 ("when a party attaches a sealed discovery document to a nondispositive motion, the usual presumption of the public's right of access is rebutted"). Nondispositive motions "are often 'unrelated, or only tangentially related, to the underlying cause of action,'" and, as a result, the public's interest in accessing dispositive materials does "not apply with equal force" to non-dispositive ...


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