United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
HONORABLE EDWARD J. LODGE U.S. DISTRICT JUDGE
the Court is a Motion to Dismiss filed by the Defendant
United States of America, Department of Veterans'
Affairs. (Dkt. 6.) No. response has been filed and the time
for doing so has passed. The matter is ripe for the
Court's consideration. Having fully reviewed the record
herein, the Court finds that the facts and legal arguments
are adequately presented in the briefs and record. In the
interest of avoiding further delay, and because the Court
conclusively finds that the decisional process would not be
significantly aided by oral argument, the Motion is decided
on the record. For the reasons stated herein, the Court
grants the Motion.
AND PROCEDURAL BACKGROUND
November 21, 2018, Plaintiff Robert Coy filed the Complaint
in this matter raising claims for declaratory relief,
wrongful foreclosure, quiet title, accounting, and refund
fees & costs. (Dkt. 1.) The claims relate to the
Department of Veterans Affairs' (“VA”)
non-judicial foreclosure and state eviction proceedings
regarding certain real property located at 9941 West Granger
Avenue, Boise, Idaho 83704 (“Granger Property”).
The other Defendants named in this case are the mortgage
companies who loaned funds or refinanced the loan relating to
the Granger Property. The VA prevailed in the state court
case to remove Mr. Coy from the property. (Dkt. 9, Ex. A.)
case, Mr. Coy alleges he has superior priority title to the
Granger Property based on a January 23, 1889 Land Patent
issued by President William McKinley to Lizzie J.
Fitzpatrick. (Dkt. 1, Ex. 1.) Mr. Coy claims his title
interest as a successor to Ms. Fitzpatrick is superior to any
other claim and that the VA and remaining lender Defendants
infringed upon his property rights, breached the contractual
and fiduciary duties they owed to Plaintiff, and wrongfully
foreclosed on the property. (Dkt. 1.) Mr. Coy further claims
the VA's state court ejectment action
“ignored” the Land Patent and that the VA has
taken no action to extinguish his “top priority and
pre-emptive title interest in the Property created by said
Land Patent” nor could the VA do so because it lacks
standing and privity. (Dkt. 1.) The VA's eviction
proceedings, Mr. Coy argues, violated his constitutional
rights and the covenant of good faith and fair dealing.
Further, Mr. Coy alleges the other named Defendants are
lending institutions who defrauded him and breached the
covenant of good faith and fair dealing by failing to
disclose/obscured facts relating to his superior title
resulting in the wrongful foreclosure.
February 15, 2019, the VA filed this Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(5) and (6).
(Dkt. 6.) Plaintiff did not file a response to the Motion and
the time for doing so has passed. (Dkt. 7, 8.) The Court
finds as follows.
Federal Rule of Civil Procedure 12(b)(5), a defendant may
move for dismissal due to insufficient service of process.
Fed.R.Civ.P. 12(b)(5). Once a defendant challenges service of
process, the plaintiff has the initial burden of establishing
the validity of service of process under Rule 4. See,
e.g., Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.
2004). If plaintiff makes such a showing, defendant must
present evidence to establish the absence of valid service.
See Ritchie Bros. Auctioneers (America) Inc. v.
Suid, No. C17-1481-MAT, 2018 WL 72166, at *10 (W.D.
Wash. Feb. 6, 2018). The plaintiff must then present
countering evidence to show proper service or create an issue
of fact necessitating an evidentiary hearing. Id.
“When considering a motion to dismiss a complaint for
untimely service, courts must determine whether good cause
for the delay has been shown on a case by case basis.”
In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)
motion to dismiss made pursuant to Federal Rule of Civil
Procedure 12(b)(6), tests the sufficiency of a party's
claim for relief. When considering such a motion, the
Court's inquiry is whether the allegations in a pleading
are sufficient under applicable pleading standards. Federal
Rule of Civil Procedure 8(a) sets forth minimum pleading
rules, requiring only a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2).
motion to dismiss will only be granted if the complaint fails
to allege “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted). Although “we must take all of the
factual allegations in the complaint as true, we are not
bound to accept as true a legal conclusion couched as a
factual allegation.” Id. at 1949-50; see
also Manzarek v. St. Paul Fire & Marine Ins. Co.,
519 F.3d 1025, 1031 (9th Cir. 2008). Therefore,
“conclusory allegations of law and unwarranted
inferences are insufficient to defeat a motion to dismiss for
failure to state a claim.” Caviness v. Horizon
Comm. Learning Cent., Inc., 590 F.3d 806, 811-12 (9th
Cir. 2010) (citation omitted).
Motion to Dismiss the Claims Against the Department of
seeks dismissal of Mr. Coy's claims against it based on
insufficient service of process and because the claims have
been fully litigated and finally resolved by the state court
and, therefore, are barred by res judicata. The VA
asserts the claims are also precluded by sovereign immunity
and as a matter of law. (Dkt. 6.) ...