United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT JUDGE.
pending before this court are the Motion to Dismiss
[#42] by Wilmington Savings Fund Society, FSB
(“Wilmington”), Christiana Trust, PNMAC Mortgage
Co. LLC (“PNMAC”), PennyMac Loan Services, LLC
(“PennyMac”), PennyMac Mortgage Investment Trust
Holdings I, LLC (“PennyMac Holdings”), Deutsche
Bank as Trustee of PennyMac Loan Trust 2011-NPL1
(“Deutsche Bank Trustee”), Mortgage Electronic
Registration Systems, Inc. (“MERS”), and
Specialized Loan Servicing LLC (“SLS”)
(collectively, the “PennyMac Defendants”) and
Defendant CitiMortgage's Motion to Dismiss
[#57]. Both motions seek dismissal of Plaintiff Jacques
Saade's Verified First Amended Complaint &
Request for Injunctive Relief Demand for Jury Trial
[“Amended Complaint”] [#14] based on res
judicata and other grounds. Also pending is
Plaintiff's Motion to Strike Defendants' Motion
to Dismiss [“Motion to Strike”] [#66]. For
the reasons set forth below, Plaintiff's Motion to
Strike [#66] is DENIED, and Defendant CitiMortgage's
Motion to Dismiss [#57] is GRANTED. The PennyMac
Defendants' Motion to Dismiss [#42] is GRANTED
with respect to Counts 1-6, 8, 10-14, 16-21, and 24-25. The
court reserves ruling on whether Count 9 should be dismissed,
and will set a hearing with respect to the issue identified
Plaintiff's Motion to Strike
asked this court to strike the PennyMac Defendants'
motion to dismiss as untimely, and to enter default judgment
against them pursuant to Federal Rule of Civil Procedure 55.
Mot. to Strike 6 [#66]. Plaintiff notes that he filed this
action on October 3, 2016, and that the PennyMac Defendants
did not file their motion to dismiss until December 20, 2016.
Id. at 1, 3-4.
record shows no attempt to serve any of the PennyMac
Defendants, other than Defendant Christiana Trust, and thus
no facts to suggest that the unserved PennyMac Defendants
failed to timely defend this action.
does claim to have served Christiana Trust, while the
PennyMac Defendants assert that the purported service was
improper. The court need not resolve this dispute. Even if
Plaintiff had properly served Christiana Trust on October 12,
2016, he did not file an Affidavit of Service until December
13, 2016. Once the claim of service was filed, the PennyMac
Defendants promptly filed their motion to dismiss on December
Rule of Civil Procedure 55(a) states that where “a
party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must
enter the party's default.” After such entry of
default by the clerk, the plaintiff may seek a default
judgment. Fed.R.Civ.P. 55(b). Here, the PennyMac Defendants
have defended this action prior to service or attempted
service on all but one of them, and as to that one, moved
prior to any clerk's entry of default, and prior to
Plaintiff seeking entry of default judgment. The court finds
no basis for a default judgment and accordingly,
Plaintiff's Motion to Strike [#66] is DENIED.
Defendants' Motions to Dismiss
survive a motion to dismiss, a complaint must include factual
allegations that, taken as true, demonstrate a plausible
claim for relief. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555-58 (2007). A plausible claim is one containing
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). To assess a complaint, the court first
“must separate the complaint's factual allegations
(which must be accepted as true) from its conclusory legal
allegations (which need not be credited).” Jane Doe
No. 1 v. Backpage.com, LLC, 817 F.3d 12, 24 (1st Cir.
2016) (citation omitted). The court must then
“determine whether the remaining facts allow it to
‘draw the reasonable inference that the defendant is
liable for the misconduct alleged.'” Id.
court can, in an appropriate case, consider the affirmative
defense of res judicata on a Rule 12(b)(6) motion to
dismiss. See In re Colonial Mortg. Bankers Corp.,
324 F.3d 12, 16 (1st Cir. 2003). An appropriate case is one
in which (1) “the facts that establish the defense
[are] definitively ascertainable from the allegations of the
complaint, the documents (if any) incorporated therein,
matters of public record, and other matters of which the
court may take judicial notice, ” and (2) “the
facts so gleaned  conclusively establish the affirmative
defense.” Id. In deciding a Rule 12(b)(6)
motion to dismiss, a court is ordinarily limited to
considering “only the complaint, documents attached to
it, and documents expressly incorporated into it.”
Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71-72
(1st Cir. 2014). The court can also consider matters of
public record, Freeman v. Town of Hudson, 714 F.3d
29, 36 (1st Cir. 2013), including the record of the
purportedly preclusive action where a “motion to
dismiss is premised on a defense of res
judicata.” Andrew Robinson Int'l, Inc. v.
Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008).
Plaintiff's Factual Allegations
review of the facts alleged in the Amended Complaint is set
forth in the Memorandum & Order [#78].
The PennyMac Defendants' Motion to
Amended Complaint asserts the following claims against the
PennyMac Defendants: Counts 1-6, 8-14, 16-21, and 24-25. The
PennyMac Defendants have moved to dismiss each of the counts
against them in the Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).
PennyMac Defendants argue first that the doctrine of res
judicata precludes Plaintiff from asserting his claims
has filed two prior actions regarding his mortgage (the
“Mortgage”). First, in April 2015, Plaintiff
filed a complaint in Massachusetts state court against the
PennyMac Defendants, CitiMortgage, and other defendants. That
action was removed to this court, Plaintiff's motion to
remand was denied, and on October 14, 2015, Plaintiff filed
his Second Amended Complaint. The Second Amended Complaint
was eventually dismissed, and the case was closed. See
Saade v. PennyMac Loan Services, LLC, 15-cv-12275-IT (D.
Mass.) (the “First ...