United States District Court, E.D. California
ORDER GRANTING MOTION TO DISMISS PLAINTIFF’S
FIRST AMENDED COMPLAINT
MENDEZ UNITED STATES DISTRICT JUDGE
Bank of America, National Association (BANA) seeks to dismiss
Plaintiff Anthony Kassman’s
(“Plaintiff’s”) First Amended Complaint
(FAC) under Federal Rule of Civil Procedure
(“Rule”) 8(a)(2) (Doc. #17). For the following
reasons, the motion is GRANTED with leave to
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
filed his FAC in state court in December 2015. He alleges
twenty-one causes of action, related to the foreclosure of
his property. Defendants Mortgage Electronic Registration
System, Select Portfolio Servicing, Inc, and Bank Of New York
Mellon, Inc. as Trustee for the Certificate Holder of the
CWALT, Inc. Alternative Loan Trust 2005-51 Mortgage
Pass-Through Certificates, Series 2005-51 (collectively,
“Removal Defendants”) removed this case on
February 26, 2016, asserting subject matter jurisdiction on
the basis of federal question jurisdiction. Notice of Removal
(Doc. #1) 3:7-11.
moved to dismiss (Doc. #5), and the motion was fully briefed.
Thereafter, the Court issued a minute order dismissing
BANA’s motion without prejudice for failure to comply
with the Court’s Order requiring counsel to meet and
confer before filing any motion (Doc. #14). BANA filed
another motion to dismiss, which Removal Defendants joined
(Doc. ##17, 20). Plaintiff opposes (Doc. #22), and both BANA
and Removal Defendants have replied (Doc. ##23, 24).
“moves to dismiss on grounds that Plaintiff’s
123-page, 613-paragraph operative complaint violates Rule
8’s well-established requirement that a pleading
contain ‘a short and plain statement of the
claim.’” BANA’s Mot. to Dismiss Pl.’s
FAC Pursuant to Rule 8 (“Mot.”) 1:6-8. BANA
“requests that this Court dismiss Plaintiff’s
First Amended Complaint with prejudice.”
Id. at 3:9-10.
opposition, Plaintiff argues that he was not subject to the
Rule 8 pleading standard when he filed in state court.
Pl.’s Opp’n to Mot. & Mem. of P. & A. ISO
Same (“Opp’n”) 2:26-28, 3:22. Plaintiff
asks the Court to “grant his request to amend the
complaint.” Id. at 4:12-13.
Court agrees with the parties that Plaintiff’s FAC does
not comply with Rule 8. Rule 8(a)(2) dictates: “A
pleading that states a claim for relief must contain: . . .
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Rule 8(d)(1) states: “Each allegation [of a pleading]
must be simple, concise, and direct.” Id.
is unnecessarily lengthy and repetitive, and it lacks
“simple, concise, and direct” allegations.
Id. For example, Plaintiff has not made clear
connections between general information about BANA’s
past business practices and Plaintiff. BANA and Removal
Defendants, however, have not shown that amendment would be
futile, for the reasons discussed below.
relies in part on Lowery v. Hauk, 422 F.Supp. 490
(C.D. Cal. 1976) for the proposition that “federal
courts can and do dismiss original complaints on Rule 8
grounds.” BANA’s Reply ISO Mot. 3:21. In
Lowery, the court found the fourteen-page complaint
violated Rule 8, but it also found judicial immunity
precluded plaintiff’s claims. Id. at 492-93.
Unlike Lowry, BANA has not shown this lawsuit
“cannot be maintained against” the named
defendants. Id. at 492.
Defendants present two additional reasons for dismissal
without leave to amend. First, they argue Plaintiff brings
the FAC “in ‘bad faith and with a dilatory
purpose.’” Removal Defs.’ Notice of Joinder
& Mot. to Dismiss for Failure to Comply with Rule 8(a)(2)
(“Joinder”) 2:10 (quoting Jerviss v. Select
Portfolio Servicing, Inc., No. 2:15-CV-01904-MCE-KJN,
2015 WL 7572130, at *7 (E.D. Cal. Nov. 25, 2015)). Removal
Defendants point to Plaintiff’s failure to comply with
Rule 8 and “tactics during the meet and confer
process.” Joinder 2:12-20. Removal Defendants, however,
have not demonstrated Plaintiff filed this lawsuit in bad
faith and with a dilatory purpose sufficient to justify
dismissal without leave to amend.
Removal Defendants argue in a conclusory manner that
“Plaintiff cannot amend the FAC in good faith because
he assigned his rights in this action to Donald
Hubbard.” Joinder 2:23-24. Removal Defendants submit an
exhibit entitled “Assignment Agreement, ” which
they assert is “a notarized assignment of
Plaintiff’s right to sue in this action.” Decl.
of Connor W. Olson ISO Joinder (Doc. #20-1) ¶ 4; Ex. A,
at 1. Generally, the Court may not consider material beyond
the pleadings in ruling on a motion to dismiss, and Removal
Defendants have failed to establish a proper basis for the
court to take judicial notice of this exhibit. ...