Wong v. Night Swim Lane Trust

Opinion

5 * * *

6 SUET F. WONG, Case No. 2:23-cv-00934-MMD-BNW

7 Plaintiff, ORDER v. 8 NIGHT SWIM LANE TRUST, et al., 9 Defendants. 10 12 Pro se Plaintiff Suet F. Wong sued Defendants Night Swim Lane Trust, Bank of 13 America Home Loans,1 and Sables, LLC for claims arising out of the foreclosure of her 14 property. (ECF No. 1 (“Complaint”).) Before the Court is Bank of America’s motion to 15 dismiss (ECF No. 7) and motion to expunge lis pendens (ECF No. 8).2 As further 16 explained below, because Plaintiff’s claims against Bank of America are barred by res 17 judicata, the Court grants the motion to dismiss. The Court denies Bank of America’s 18 motion to expunge the lis pendens and additional requests for Rule 54(b) certification and 19 entry of a vexatious litigant order. 21 Plaintiff has filed multiple actions in this district against Bank of America and other 22 parties regarding the same property located at 5402 Night Swim Lane, Las Vegas, 23 24 25 1Bank of America, N.A. asserts that it has been erroneously identified as Bank of 26 America Home Loans (ECF No. 7 at 1), and Plaintiff does not dispute this.

27 2Both motions are identical in content. Plaintiff responded (ECF No. 13), and Bank of America replied (ECF No. 15.) The Court grants Bank of America’s request for judicial 28 notice (ECF No. 7 at 2 n.1) of its exhibits, which consist of undisputed matters of public record. See Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). 2 was filed on November 29, 2022 before Judge Andrew P. Gordon in Wong v. Night Swim 3 Lane Trust et al., Case No. 2:22-cv-01985-APG-DJA (D. Nev. Filed Nov. 29, 2022) (“Prior 4 Action”). In this Prior Action, Plaintiff asserted claims against Night Swim Lane Trust, 5 Bank of America Home Loans, and Sables, LLC for violations of the Real Estate 6 Settlement Procedures Act, violation of constitutional rights under the Fifth and 7 Fourteenth Amendments, and violations of the Truth in Lending Act and Regulation Z. 8 (ECF No. 7-13.) 9 On May 3, 2023, Judge Gordon found Plaintiff’s claims against Bank of America 10 barred by claim preclusion and dismissed those claims with prejudice. (ECF No. 7-14 at 11 3-5.) On June 12, 2023, Judge Gordon then dismissed Plaintiff’s claims against Night 12 Swim Lane Trust and Sables, LLC without prejudice for failure to timely serve them, which 13 closed that action. See Wong v. Night Swim Lane Trust et al., Case No. 2:22-cv-01985- 14 APG-DJA, ECF No. 20 (D. Nev. Filed June 12, 2023). 15 In the instant action, Plaintiff filed a complaint substantively identical to the one in 16 the Prior Action, asserting the same claims against Defendants. (Compare ECF No. 1 17 with ECF No. 7-13.) 19 A. Motion to Dismiss 20 Bank of America argues that Plaintiff’s claims are barred by the doctrine of res 21 judicata. (ECF No. 7 at 4.) “The doctrine of res judicata [claim preclusion] provides that ‘a 22 final judgment on the merits bars further claims by parties or their privies based on the 23

24 3See Wong v. Night Swim Lane Trust et al., Case No. 2:22-cv-01985-APG-DJA; Wong v. National Default Servicing Corporation et al., Case No. 2:22-cv-00853-CDS- 25 NJK; Wong v. Countrywide Financial Corp. et al., Case No. 2:19-cv-02226-JCM-VCF; Wong v. Countrywide Home Loans et al., Case No. 2:18-cv-1273-JCM-CWH; Wong v. 26 Countrywide Home Loans, Inc. et al., Case No. 2:16-cv-01012-JCM-CWH; Wong v. Countrywide Home Loans, Inc. et al., Case No. 2:15-cv-01398-JCM-VCF; Wong v. Bank 27 of America Home Loans, N.A. et al., Case No. 2:13-cv-01438-JCM-CWH; Wong v. BAC Home Loans Servicing, LP et al., Case No. 2:11-cv-01608-GMN-CWH; Wong v. Citi 28 Home Loans Servicing, LP et al., Case No. 2:11-cv-01428-ECR-GWF. 2 Montana v. United States, 440 U.S. 147, 153 (1979)). Claim preclusion requires three 3 elements: (1) an identity of the claims; (2) a final judgment on the merits; and (3) the same 4 parties or privity between the parties. Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 5 1047, 1052 (9th Cir. 2005) (citations omitted). 6 Here, Plaintiff asserts identical claims as in the Prior Action against an identical 7 party—Bank of America—based on an identical set of facts. (Compare ECF No. 1 with 8 ECF No. 7-13.) The judgment as to Bank of America in the Prior Action was not appealed 9 by Plaintiff and constitutes a final judgment on the merits. Accordingly, Plaintiff’s claims 10 against Bank of America are plainly barred by res judicata, and the Court grants Bank of 11 America’s motion to dismiss.4 Because amendment would be futile, the Court dismisses 12 those claims with prejudice and denies Plaintiff’s request for leave to amend. See 13 Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) 14 (explaining that leave to amend may be denied where amendment would be futile). To be 15 clear, this means that Plaintiff may not refile these same claims against Bank of America. 16 B. Motion to Expunge Lis Pendens and Other Requested Relief 17 Bank of America also requests that the Court: (1) expunge the lis pendens; (2) 18 enter a Rule 54(b) certification if the Complaint is not dismissed as to other Defendants; 19 and (3) deem Plaintiff a vexatious litigant. (ECF No. 15 at 5.) Bank of America does not 20 make any argument in support of these requests. Moreover, Bank of America did not raise 21 its requests for Rule 54(b) certification and entry of a vexatious litigant order until its reply, 22 so the Court need not consider them.5 See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 23 24 4Plaintiff’s opposition to the motion to dismiss (ECF No. 13) is identical to the 25 opposition filed in the Prior Action, which Judge Gordon rejected as unpersuasive (ECF No. 7-14 at 4-5). For similar reasons, this Court also does not find Plaintiff’s recycled 26 arguments persuasive.

27 5While the Court does not consider or conduct a full vexatious litigant analysis here, the Court warns Plaintiff that her conduct is arguably becoming vexatious, and if Plaintiff 28 continues to file the same claims concerning the same Property against Bank of America, 1 || 2007) (‘The district court need not consider arguments raised for the first time in a reply 2 || brief.”). 3 In any event, expunging the lis pendens would be inappropriate given that 4 || Plaintiffs claims against Defendants Night Swim Lane Trust and Sables, LLC still remain. 5 || And Bank of America has not demonstrated that there is a “pressing need” to direct entry 6 || of final judgment under Rule 54(b). See Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 7 || 965 (9th Cir. 1981) “Judgments under Rule 54(b) must be reserved for the unusual case 8 || in which the costs and risks of multiplying the number of proceedings and of overcrowding 9 || the appellate docket are outbalanced by pressing needs of the litigants for an early and 10 || separate judgment as to some claims or parties.”). The Court accordingly denies the 11 || motion to expunge lis pendens (ECF No. 8) and other requests without prejudice. 12 || IV. CONCLUSION 13 The Court notes that the parties made several arguments and cited to several 14 || cases not discussed above. The Court has reviewed these arguments and cases and 15 || determines that they do not warrant discussion as they do not affect the outcome of the 16 || motions before the Court. 17 It is therefore ordered that Defendant Bank of America’s motion to dismiss (ECF 18 || No. 7) is granted. Plaintiffs claims against Bank of America are dismissed with prejudice. 19 It is further ordered that Bank of America is dismissed from this action. 20 It is further ordered that Bank of America’s motion to expunge lis pendens (ECF 21 || No. 8), request for Rule 54(b) certification, and request to declare Plaintiff a vexatious 22 || litigant are denied without prejudice. 23 DATED THIS 7" Day of August 2023.

25 MIRANDA M. DU 26 CHIEF UNITED STATES DISTRICT JUDGE 27 28