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Kassman v. Bank of America, N.A.

United States District Court, E.D. California

August 2, 2016

ANTHONY KASSMAN, Plaintiff
v.
BANK OF AMERICA, NATIONAL ASSOCIATION, a Corporation; MORTGAGE ELECTRONIC REGISTRATION SYSTEM; SELECT PORTFOLIO SERVICING, INC, a Corporation; 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; BANK OF NEW YORK MELLON; MTC FINANCIAL, a Corporation dba TRUSTEE CORPS; YORK REAL ESTATE DEVELOPMENT, LLC, a California Limited Liability Company; JAMES YORK, an individual; JOHN SHANER, an individual; and DOES 1 THROUGH 50 inclusive, Defendants.

          ORDER GRANTING MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT

          JOHN MENDEZ UNITED STATES DISTRICT JUDGE

         Defendant 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 amend.[1]

         I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

         Plaintiff 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.

         BANA 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).

         II. OPINION

         BANA “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.

         In his 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.

         The 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. 8(d)(1).

         The FAC 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.

         BANA 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.

         Removal 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.

         Second, 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. ...


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