Spice v. Internal Revenue Service

Opinion

WESTERN DISTRICT OF WASHINGTON TED SPICE, CASE NO. 20-5005 RJB Plaintiff, ORDER ON MOTION TO DISMISS v. INTERNAL REVENUE SERVICE, et. al., Defendants.

This matter comes before the Court on the Defendants Deutsche Bank Trust Company Americas and Nationstar Mortgage’s (“Deutsche and Nationstar”) Motion to Dismiss. Dkt. 48. The Court has considered the pleadings filed regarding the motion and the remaining record. On January 6, 2020, the Plaintiff filed this case. Dkt. 1. On May 11, 2020, Deutsche and Nationstar moved for dismissal of this case against them, arguing that the Complaint fails to make any substantive allegations against them, identify a claim against them, or ask for any relief related to them. Dkt. 48. Fed. R. Civ. P. 12(b)(6) motions to dismiss may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). Deutsche and Nationstar’s motion to dismiss (Dkt. 48) should be granted. The Plaintiff responded to the motion and does not oppose it. Dkt. 75. Further, the motion has merit. The

Plaintiff failed to allege sufficient facts against Deutsche and/or Nationstar to state a claim for relief. They should be dismissed without prejudice. The Court notes that Defendants Bank of America NA (“BOA”); Bank of New York Mellon, as Trustee on behalf of the registered holders of Alternative Loan Trust 2006-OA3, Mortgage Pass-through Certificates, Series 2006-OA3 formerly known as Bank of New York (“Bank of NY”); GMAC Mortgage LLC (“GMAC”); and Ditech Financial LLC (“Ditech”) have not appeared in this case. The record does not reflect whether these parties have been properly served.

This case was filed on January 6, 2020 – over six months ago. The Plaintiff has not moved for default against BOA, Bank of NY, GMAC or Ditech. Based on the allegations and claims in the Complaint, it is not clear whether he has stated a claim against any of these Defendants or seeks any relief against them. Aside from these Defendants (BOA, Bank of NY, GMAC and Ditech) and the United States, all other Defendants in this case have been dismissed. The United States has a motion to dismiss noted for consideration for this Friday, June 12, 2020. During the six months that this case has been pending, the Plaintiff has taken no action on the record regarding BOA, Bank of NY, GMAC or Ditech. It is not clear whether he intends to continue the case against them. To clarify the record, on or before June 12, 2020, the Plaintiff should be ordered to inform the Court of whether he intends to continue the case against Defendants BOA, Bank of NY, GMAC or Ditech. Therefore, it is hereby ORDERED that:

• Defendants Deutsche Bank Trust Company Americas and Nationstar Mortgage’s Motion to Dismiss (Dkt. 48) IS GRANTED; • Deutsche Bank Trust Company Americas and Nationstar Mortgage ARE DISMISSED WITHOUT PREJUDICE; and • On or before June 12, 2020, the Plaintiff SHALL INFORM the Court of whether he intends to continue the case against Defendants Bank of America NA; Bank of New York Mellon, as Trustee on behalf of the registered holders of Alternative Loan Trust 2006-OA3, Mortgage Pass-through Certificates, Series 2006-OA3 formerly known as Bank of New York; GMAC Mortgage LLC; and

Ditech Financial LLC. The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address. Dated this 9th day of June, 2020. A

ROBERT J. BRYAN United States District Judge