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Nazemi v. Wells Fargo Bank, N.A.

United States District Court, S.D. California

June 28, 2019

FARRAH PIRAHANCHI NAZEMI, Plaintiff,
v.
WELLS FARGO BANK, N.A. et al., Defendants.

          ORDER ON MOTION TO DISMISS FIRST AMENDED COMPLAINT [DOC. NO. 17]

          HON. CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE

         On May 17, 2019, Defendants Wells Fargo Bank, N.A. and the Bank of New York Mellon as Trustee, for the Certificate Holders of the REMIC 16 Trust (“Defendants”) filed a motion to dismiss Plaintiff's First Amended Complaint. [Doc. No. 17.] On June 24, 2019, Plaintiff filed an opposition to the motion. [Doc. No. 20.] For the reasons set forth below, the motion to dismiss the First Amended Complaint (“FAC”) is GRANTED.

         BACKGROUND

         Plaintiff's original complaint was filed in state court on November 30, 2018, and then removed to federal court by Defendants. [Doc. No. 1.] Plaintiff, who is pro se, filed the original complaint on behalf of herself and Monireh Bozorgi. On January 9, 2019, Defendants filed a motion to dismiss the original complaint for failure to state a claim.

         [Doc. No. 3.] After granting Plaintiff numerous extensions of time to file an opposition to the original motion to dismiss [Doc. Nos. 5 and 7] and conducting a hearing, the Court granted the original motion to dismiss and gave Plaintiff leave to file an amended complaint. [Doc. Nos. 12, 13.] The Court explained to Plaintiff that she could only bring her own claims and, as a pro se, could not represent Ms. Bozorgi.

         On April 18, 2019, Plaintiff requested an extension of time to file an amended complaint. [Doc. No. 14.] On April 22, 2019, the Court granted Plaintiffs request for an extension of time to file an amended complaint. [Doc. No. 15.] On May 3, 2019, Plaintiff filed an amended complaint, which does not include Ms. Bozorgi as a plaintiff in the caption. [Doc. No. 16.][1]

         On May 17, 2019, Defendants filed a motion to dismiss the first amended complaint for failure to state a claim. [Doc. Nos. 17, 18.] Plaintiffs opposition was due on June 7, 2019. On June 24, 2019, seventeen days after it was due, Plaintiff filed an opposition. [Doc. No. 20.]

         REQUEST FOR JUDICIAL NOTICE

         Defendants request that the Court take judicial notice of the following documents pursuant to Federal Rule of Evidence Rule 201:

Exhibit A: Deed of Trust executed by Plaintiff Pirahanchi-Nazemi on November 11, 2005 and recorded on November 29, 2005 in the Official Records of San Diego County at Document No. 2005-1026359;
Exhibit B: Notice of Default directed to Plaintiff Pirahanchi-Nazemi and recorded on July 10, 2017 in the Official Records of San Diego County at Document No. 2017-308520.
Exhibit C: Declaration of Farrah Pirananchi-Nazemi filed on July 11, 2008 in the U.S. Bankruptcy Court Southern District of California at case no 08-04601-LT7.

[Doc. No. 18.]

         At the motion to dismiss stage a court may consider materials incorporated into the complaint or matters of public record, without converting the motion to dismiss into a motion for summary judgment. Coto Settlement v. Eisenberg. 593 F.3d 1031, 1038 (9th Cir. 2010) (citation omitted); United States v. Ritchie, 432 F.3d 903, 908 (9th Cir. 2003) (“The defendant may offer such a document, and the district court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).”). The Ninth Circuit has extended the “incorporation by reference” doctrine to take into account documents “whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading.” Id.; See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); see also Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002); Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998). The court may disregard allegations in a complaint that are contradicted by matters properly subject to judicial notice. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). See also ...


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