United States District Court, D. Arizona
Douglas L. Rayes United States District Judge.
the Court is Defendants' Motion to Dismiss Second Amended
Complaint, which is fully briefed. (Docs. 25-27.) For the
following reasons, Defendants' motion is granted.
case arises out of a non-judicial foreclosure of real
property owned by pro se Plaintiff Michael Brosnahan and
located in Sedona, Arizona (“Property”).
Plaintiff borrowed $373, 500.00 from Countrywide Home Loans,
Inc. (“Countrywide”) in 2006, and concurrently
executed a deed of trust securing repaying of the loan using
the Property as collateral. Plaintiff stopped paying on the
loan in 2009. On November 22, 2016, Plaintiff filed this
action, initially alleging a single claim against Defendants
for violating the Fair Debt Collections Practices Act
(“FDCPA”). (Doc. 1.) Plaintiff also filed an
application for a temporary restraining order
(“TRO”), in which he asked the Court to enjoin
the non-judicial foreclosure of the Property scheduled the
Court denied Plaintiff's TRO application after finding
that he had not complied with Federal Rule of Civil Procedure
65(b)(1)'s notice requirements. (Doc. 7.) The Court also
found that Plaintiff was not likely to succeed on the merits
of his claim because mortgagees and their beneficiaries are
not debt collectors subject to the FDCPA, and actions taken
to facilitate non-judicial foreclosure are not attempts to
collect a debt within the meaning of the act. (Id.)
Further, the Court noted that Plaintiff's
“allegations are conclusory and do not state a
plausible claim to relief under the FDCPA” because
“he does not specify the nature of Defendants'
abusive debt collection practices.” (Id. at
thereafter filed an amended complaint, which purported to
assert three claims for violations of the (1) Real Estate
Settlement Procedures Act (“RESPA”), (2) Truth in
Lending Act (“TILA”), and FDCPA. (Doc. 13.)
Defendants moved pursuant to Federal Rule of Civil Procedure
12(b)(6) to dismiss the amended complaint for failure to
state a claim upon which relief may be granted. (Doc. 14.)
The Court granted Defendants' motion, concluding that
Plaintiff's amended complaint failed to comply with Rule
8's minimum pleading requirements. (Doc. 23.) The Court
also noted that
Plaintiff is not a newcomer to federal litigation. Including
this action, Plaintiff has litigated three cases in this
District since 2009, all raising objections to non-judicial
foreclosures. (See Brosnahan v. JPMorgan Chase Bank, et
al., 3:09-cv-08224-JAT (“2009 Case”);
Brosnahan v. Bank of America, et al.,
3:10-cv-08056-FJM (“2010 Case”).) Both of
Plaintiff's prior cases were dismissed for failure to
comply with Rule 8's basic pleading requirements.
(See Docs. 27, 54 in the 2009 Case; Doc. 21 in the
2010 Case.) By now, Plaintiff should know about the rules
governing pleadings in Federal courts and be able to comply.
(Id. at 3-4.) Nevertheless, the Court granted
Plaintiff leave to file a second amended complaint, but
directed him to familiarize himself with the Federal Rules of
Civil Procedure. (Id. at 4.)
timely filed his second amended complaint on October 18,
2017, which Defendants now seek to dismiss with prejudice.
Rule of Civil Procedure 12(b)(6) allows a defendant to seek
dismissal of a complaint that is not based on a cognizable
legal theory or that lacks sufficient facts to state a
plausible claim under an otherwise cognizable legal theory.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988). When analyzing a complaint for
failure to state a claim to relief under Rule 12(b)(6), the
well-pled factual allegations are taken as true and construed
in the light most favorable to the nonmoving party.
Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.
2009). Legal conclusions couched as factual allegations are
not entitled to the assumption of truth and therefore are
insufficient to defeat a motion to dismiss for failure to
state a claim. In re Cutera Sec. Litig., 610 F.3d
1103, 1108 (9th Cir. 2010). Nor is the court required to
accept as true “allegations that contradict matters
properly subject to judicial notice, ” or that merely
are “unwarranted deductions of fact, or unreasonable
inferences.” Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
avoid dismissal, the complaint must plead sufficient facts to
state a claim to relief that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). This plausibility standard “is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). “Where a complaint
pleads facts that are ‘merely consistent with' a
defendant's liability, it ‘stops short of the line
between possibility and plausibility of entitlement to
relief.'” Id. (quoting Twombly,
550 U.S. at 557.)
raise a number of arguments for dismissal, but the Court
reaches only the first: that Plaintiff's second amended
complaint violates Federal Rule of Civil Procedure 8. This
has been a persistent problem ...