Hackett v. Bayview Loan Servicing, LLC

DOUGLAS B. HACKETT, Plaintiff, v. BAYVIEW LOAN SERVICING, LLC; BAC HOME LOANS SERVICING,LP F/K/A COUNTRYWIDE HOME LOANS SERVICING LP,its successors in interest and/or assigns; JUDGE RICARDO J. MENCHACA;JUDGE DANIELLE J. HUNSAKER; JUDGE D. CHARLES BAILEY;SHANNON K. CALT; JOHN DOES 1-20; JANE DOES 1-20;DOE CORPORATIONS 1-20; DOE ENTITIES 1-20;and DOE GOVERNMENTAL UNITS 1-20, Defendants.

Case No. 3:19-cv-00635-AC

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

February 18, 2020

FINDINGS AND RECOMMENDATION

ACOSTA, Magistrate Judge:

Introduction

Plaintiff Douglas B. Hackett ("Hackett"), proceeding pro se, brings this action against defendants Bayview Loan Servicing, LLC ("Bayview"), BAC Home Loans Servicing, LP ("BAC"), Judge Ricardo J. Manchaca, Judge Danielle J. Hunsaker, Judge D. Charles Bailey, all judges for the Circuit Court of the State of Oregon for the County of Washington (collectively, "Judges"), Shannon K. Calt, ("Calt"), and numerous Doe defendants, apparently claiming the judicial foreclosure on real property owned by Hackett was fraudulently obtained, constituted a theft of his real property, and violated his rights to due process. Bayview moves to dismiss the claims alleged against it pursuant to Federal Rule of Civil Procedure 12(b)(6) asserting Hackett has failed to state a viable claim, his claims are barred by res judicata, and he lacks standing to pursue the alleged claims.

The court finds Hackett's claims are all barred by claim preclusion, issue preclusion, the Rooker-Feldman doctrine, or judicial estoppel. Accordingly, the court recommends Bayview's motion to dismiss be granted; the claims against BAC, the Judges, Calt, and the Doe defendants be dismissed sua sponte; and Hackett's complaint be dismissed with prejudice.

Preliminary Procedural Matters

I. Doe Defendants

Hackett names numerous unidentified individuals and entities, including John Does 1-20, Jane Does 1-20, Doe Corporations 1-20, Doe Entities 1-20, and Doe Governmental Units 1-20, as defendants (collectively "Doe Defendants"). Hackett represents the Doe Defendants are "persons, partnership, corporations, entities, or governmental units whose names and identities are presently unknown to Plaintiff and who have or may claim some right, title, or interest in the Property." (Revised Am. Compl. for Theft of APN: R0496038, Known as 12421 SW Prince Albert Street, King City, Oregon, and Deprivation of Rights to Due Process Under Color of Law - Title 18 U.S. Code § 242, ECF No. 32 ("Compl."), ¶ 8.)

"As a general rale, the use of 'John Doe' to identify a defendant is not favored. However, situations arise, such as the present, where the identity of alleged defendants will not be known prior to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Hackett has had ample time to discover the names of the Doe Defendants since the filing of this lawsuit in early 2019, particularly in light of his naming the same Doe defendants in a lawsuit filed in this district in 2016,¹ and has failed to amend the Complaint to properly identify any of the Doe Defendants. Accordingly, the court should dismiss the Doe Defendants.

II. Unserved Defendants

Hackett initiated this action on February 22, 2019, by filing a complaint in the Circuit Court of the State of Oregon for the County of Washington ("State Court") against Bayview, BAC, and the Doe Defendants. (Notice of Removal, ECF No. 1 ("Notice"), Ex. A at 1.) Bayview removed the case to federal court on April 25, 2019, based on diversity jurisdiction. (Notice at 1.) At that time, Bayview represented it had obtained a copy of the complaint from the State Court's e-Court system on April 24, 2019, and that no other defendant had been served. (Notice ¶¶ 2, 9, 10.) On June 12, 2019, Hackett filed an amended complaint adding the Judges and Calt as defendants. On June 25, 2019, the Clerk of Court issued summons for BAC, the Judges, and Calt and directedHackett (or "counsel") to "print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5." (See ECF No. 23.) The Clerk issued summons for Bayview on July 8, 2019. Hackett has not filed proof of service on any defendant.

Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure:

[i]f a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Review of the file in this action discloses that service of summons and the complaint has not been timely made on any defendant. Bayview, by obtaining a copy of the initial complaint and removing the case to this court arguably waived any objections to service. Furthermore, by appearing in this action, Bayview received electronic service of the amended complaints filed in this action. However, with regard to BAC, the Judges, and Calt, the court finds Hackett failed to complete service within the requisite ninety days and this action should be dismissed without prejudice to these defendants provided Hackett does not offer good cause for the failure to complete service in any objections to this Findings and Recommendation.²

III. Judicial Notice

In support of its motion to dismiss based on previous litigation, Bayview asks the court to take judicial notice of and consider numerous documents. In a footnote found in the Motion toDismiss Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) filed May 8, 2019 (the "Motion"), Bayview seeks "judicial notice of the publicly recorded documents and United States District Court pleadings attached as exhibits hereto pursuant to Federal Rule of Evidence 201." (Def.'s Mot. to Dismiss Compl. Pursuant to Federal Rule of Civil Procedure 12(b)(6), ECF No. 6, ("Def.'s Mot."), at 2 n.1.) The exhibits attached to the Motion include:

1. A Deed of Trust dated March 21, 2008, between Hackett, Judith Regan ("Regan"), and Vivian Hackett,³ as Borrowers, Countrywide Bank, FSB ("Countrywide"), as Lender, and Mortgage Electronic Registration Systems, Inc. ("MERS"), as Beneficiary (the "Deed of Trust"), securing a Promissory Note in the amount of $165,000 (the "Note") with the real property located at 12421 SW Prince Albert Street, Portland, Oregon (the "Property");

2. An Assignment of Deed of Trust dated May 21, 2010, transferring the beneficial interest in the Deed of Trust from MERS to BAC (the "2010 Assignment");

3. The General Judgment of Foreclosure signed by Judge Marco Hernandez of the United States District Court for the District of Oregon on January 5, 2014 (the "General Foreclosure Judgment"), in BAC Home Loans Servicing, LP v. Hackett, Case No 3:11-cv-00416-HZ ("BAC Home I").

4. The docket sheet from BAC Home I (the "Docket Sheet");

5. The Summary of Schedules filed on July 31, 2015, by Hackett in his Chapter 13 bankruptcy proceeding, In Re Douglas Bruce Hackett, Case No. 15-33357-tmb13 (the "Summary"); 6. An Assignment of Deed of Trust dated August 11, 2015, transferring the beneficial interest in the Deed of Trust BAC to Bayview (the "2015 Assignment");

7. A Bargain and Sale Deed dated March 6, 2019, transferring Hackett and Regan's interest in the Property to Top Spin, LLC (the "Bargain Deed"); and

8. A Sheriff's Deed dated April 11, 2019, selling the Property to Top Spin, LLC & Veristone Mortgage LLC pursuant to a judgment entered in the State Court (the "Sheriff's Deed").

Bayview is offering materials outside of the pleadings in support of, or in opposition to, a motion to dismiss. In general, material outside the pleadings may not be considered in ruling on a motion to dismiss unless the motion is treated as one for summary judgment and the parties are "given reasonable opportunity to present all materials made pertinent to such motion by Rule 56." Jacobson v. AEG Captial Corp., 50 F.3d 1493, 1496 (9th Cir. 1995). There are two exceptions to this rule. First, a court may consider "material which is properly submitted to the court as part of the complaint." Lee v. County of Los Angeles, 240 F.3d 754, 774 (9th Cir. 2001). A document is not "outside" the complaint if the complaint specifically refers to the document, its authenticity is not questioned, and the plaintiff's complaint necessarily relies on it. Id. at 774. When the plaintiff fails to introduce a pertinent document as part of his pleading, the defendant may introduce the exhibit as part of his motion attacking the pleading. Cooper v. Pickett, 137 F.3d 616 (9th Cir. 1998).

Hackett offers the Docket Sheet as Exhibit 5 to the Revised Amended Complaint for Theft of APN: R0496038, Known as 12421 SW Prince Albert Street, King City, Oregon, and Deprivation of Rights to Due Process Under Color of Law - Title 18 U.S. Code §242 filed July 31, 2019 (the "Complaint"). (Compl. Ex. 5.) Moreover, Hackett specifically references theDeed of Trust, the General Foreclosure Judgment, the 2010 Assignment, and the 2015 Assignment in the Complaint. (Compl. ¶¶ 38, 146, 149, 152.) Because these documents were offered as an exhibit to or are referenced in the Complaint, Hackett has not questioned the authenticity of the proffered exhibits, and the Complaint necessarily relies on the documents, the correlating documents offered by Bayview, identified as Exhibits 1, 2, 3, 4 and 6, are properly before the court and will be considered in conjunction with the Motion.

The second exception, found in Rule 201 of the Federal Rules of Evidence, authorizes the court...