United States District Court, D. Idaho
DRIGGS JESSUP and PATTY A. JESSUP, Plaintiffs,
NATIONSTAR MORTGAGE, LLC, and DOES 1 THROUGH 10, WHOSE TRUE NAMES ARE UNKNOWN, WHO CLAIM RIGHT TITLE OR INTEREST IN LAND LEGALLY DESCRIBED AS: LOT 13 IN BLOCK 2 OF MADISON PLACE SUBDIVISION, CANYON COUNTY, IDAHO ACCORDING TO THE OFFICIAL PLAT THEREOF, FILED IN BOOK 29 OF PLATS AT PAGE 32, RECORDS OF CANYON COUNTY, IDAHO, Defendants.
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, CHIEF JUDGE UNITED STATES DISTRICT COURT
before the Court are Defendant Nationstar Mortgage LLC's
Motion to Dismiss for Failure to State a Claim (Dkt. 5) and
Plaintiffs' Motion to Dismiss for Lack of Jurisdiction
(Dkt. 20). The Court has reviewed the parties' briefing
and finds that oral argument is not necessary. For the
following reasons, the Court will grant Plaintiffs'
Motion to Dismiss and deny as moot Nationstar's Motion to
September 12, 2016, the Jessups filed this lawsuit in Idaho
state court, asserting asserting a cause of action for quiet
title as to a property located at 2909 E. Umatilla Dr.,
Nampa, Canyon County, Idaho (“subject property”).
Compl. ¶¶ 7-15. Compl. ¶ 1.
On April 2, 2003, Patty Jessup obtained a mortgage loan from
Countrywide Home Loans, Inc. and executed a deed of trust
against the subject property. Compl. ¶ 1. The
deed of trust was later assigned to Defendant Nationstar.
Compl. ¶ 12. In 2009, the Jessups stopped
making payments on the note secured by the deed of trust.
Compl. ¶ 10. They eventually received a Chapter
7 bankruptcy discharge in 2011, which discharged their
personal obligation to repay their loan. Compl.
subsequently filed the present action asserting title to the
property. The action was removed from state court to federal
court based upon diversity jurisdiction. A day later,
Nationstar filed a Motion to Dismiss for Failure to State a
Claim (Dkt. 5), arguing that the minimal factual and legal
allegations in the Complaint “fail to give the
defendant fair notice of what the claim is and the grounds
upon which it rests, ” and that to the extend the
Jessups intended to assert a claim based upon the
Jessups' bankruptcy discharge, the claim is barred by
any consideration was given to the Rule 12 motion, but after
it was fully briefed, Plaintiffs filed a Motion to Dismiss
for Lack of Subject Matter Jurisdiction (Dkt. 20). Plaintiffs
assert that on September 22, 2016, ten days after the Jessups
filed this action, Nationstar sold the relevant property to
U.S. Bank National Association at a foreclosure sale and that
Nationstar is no longer an interested party. U.S. Bank has
now filed a state-court suit for possession of the
Jessup's home. Defendants object to Plaintiffs'
Motion to Dismiss without prejudice and ask the Court to
dismiss with prejudice pursuant to Rule 12(b)(6).
Voluntary Dismissal under Rule 41(a)(2)
styled as a Motion to Dismiss under Rule 12(b)(1) for lack of
subject matter jurisdiction, Plaintiffs' Motion does not
in fact raise any jurisdictional issue. It is more
properly viewed as a motion for voluntary dismissal, pursuant
to Federal Rule of Civil Procedure 41(a). Accord
Louisiana Envtl. Action Network v. Jackson, 685
F.Supp.2d 43, 45 (D.D.C. 2010) (treating plaintiff's
motion to dismiss for lack of jurisdiction as a Rule 41
notice); Kelly v. Rockefeller Group, Inc., Civ. Action
No. 91-2002, 1992 U.S. Dist. LEXIS 14957 (D.N.J. June
18, 1992) (same).
41(a)(1) “allows plaintiffs voluntarily to dismiss some
or all of their claims against some or all defendants.”
Romoland Sch. Dist. v. Inland Empire Energy Ctr.,
LLC, 548 F.3d 738, 748 (9th Cir. 2008). A plaintiff may
dismiss an action without a court order by filing a notice of
dismissal before the opposing party serves either an answer
or a motion for summary judgment. Fed.R.Civ.P. 41(a)(1)(A).
Once an answer or summary judgment motion has been filed, a
plaintiff's voluntary dismissal may be granted only
“upon order of the court and upon such terms and
conditions as the court deems proper.” Fed.R.Civ.P.
41(a)(2). “A district court should grant a motion for
voluntary dismissal under Rule 41(a)(2) unless a defendant
can show that it will suffer some plain legal prejudice as a
result.” Smith v. Lenches, 263 F.3d 972, 975
(9th Cir. 2001) (citations omitted). Unless otherwise
specified by a court order, a dismissal under Rule 41(a) is
without prejudice. Fed.R.Civ.P. 41(a)(1); 41(a)(2).
to voluntary dismissal can be cut off only by an answer or
motion for summary judgment. Here, Defendant filed a rule
12(b)(6) motion to dismiss but did not file an answer or a
motion for summary judgment. See Dkt. 5.
Accordingly, under Rule 41(a)(1)(A)(i), Plaintiffs have
“an absolute right to voluntarily dismiss [t]his
action.” Wilson v. City of San Jose, 111 F.3d
688, 692 (9th Cir. 1997). The present motion was not required
to effectuate the dismissal; mere notice of dismissal would
inartfully drafted, the Court will treat Plaintiffs'
request as a notice of voluntary dismissal pursuant to Rule
41(a)(1) and permit ...