McCain v. Bank of America, Na

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TERRYLYN MCCAIN,

Plaintiff,
Civil Action No. 13-1418 (BAH)
v.
Judge Beryl A. Howell
BANK OF AMERICA, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Terrylyn McCain, who is proceeding pro se, brings this lawsuit against ten

defendants, including financial institutions, property owners, the California Superior Court in

San Joaquin County, the Sheriff of San Joaquin County and that Sheriff’s Department, seeking

a declaratory judgment with respect to the title of her San Joaquin, California home and an

injunction against any eviction from or foreclosure of the property on grounds that such

foreclosure and eviction violate her due process rights, have caused intentional infliction of

emotional distress, contravene the False Claims Act, 31 U.S.C. §§3729 et seq., and violate a

consent judgment entered against multiple financial entities, including Bank of America, N.A.

(“BOA”), in an unrelated matter pending in this Court. See First Amended Compl. (“FAC”)

generally, ECF No. 4.

Pending before the Court are motions by the plaintiff for a temporary restraining order

and by the defendants for dismissal of this lawsuit on multiple grounds. For the reasons

explained below, the defendants’ motion to dismiss for improper venue is granted.

1
I. BACKGROUND

The plaintiff’s eighty-two page amended complaint provides the factual allegations

outlined below. The plaintiff is a California homeowner, whose property is located in San

Joaquin County, California. See FAC ¶ 108. The plaintiff originally obtained a mortgage from

a non-party company, which subsequently “assigned” the mortgage to defendant BOA. Id. ¶¶

11; 21. BOA thereafter foreclosed on the plaintiff’s mortgage and the property was sold to

defendants Vanzetti Properties, John Vanzetti, Anthony Ghio, and Steven Vanzetti (“Property

Owner Defendants”). Id. ¶ 23. The plaintiff alleges that these defendants, acting as agents of

BOA, coordinated with “local government agencies” to deprive the plaintiff of her personal

property in “violation the consent [judgment].” Id. ¶ 21.1 Specifically, the plaintiff claims that

defendants “have deliberately and with malice raced at break neck speed towards foreclosure and

eviction of the [plaintiff] from her home in absolute defiance of several provisions of [a]

CONSENT DECREE . . . and have acted as if they have powers to enforce the note even though

they have not proved their ownership interest in the note and have not proved their possession of

the original note.” Id. ¶ 11.

The crux of the plaintiff’s complaint is that the transfer of the deed of trust to BOA was

fraudulent. Id. This led BOA “and it [sic] agents,” which allegedly include defendants

Recontrust Company N.A. and the Bank of New York Mellon (collectively with BOA, the

“Bank Defendants”), to “foreclose on [the plaintiff’s] home without any admissible evidence that

they are the note holders in violation of numerous sections of the Uniform Commercial Code.”

Id. ¶ 27. This purportedly violated the “Consent [judgment] . . . [which] specifically prohibits

many of the particular actions taken by the [d]efendants.” Id. ¶ 30. The plaintiff alleges that

1
The plaintiff refers in the FAC to a consent judgment entered into by five banks, including BOA, in this Court.
See Consent Judgment, United States v. Bank of Am. Corp., No. 12-CV-361 (D.D.C. Apr. 4, 2012), ECF No. 11
(“Unrelated Consent Judgment”).

2
under the consent judgment, “all pleadings and other court documents in foreclosure proceedings

must be accurate and complete,” a requirement which allegedly cannot be met by BOA because

BOA cannot produce the mortgage note. Id. Consequently, the plaintiff alleges that the

foreclosure proceedings were premised on inaccurate documentation. Id.

Based upon the plaintiff’s belief that the foreclosure action was improper and that any

eviction action based on such foreclosure would be unlawful, the plaintiff also sued the Sheriff of

San Joaquin County in his personal and private capacity, along with the entire San Joaquin

County Sheriff’s Department (collectively known as the “Sheriff’s Department Defendants”).

Id. ¶ 21. The plaintiff alleges that the Sheriff “either knew or should have known that the

consent [judgment] issued by this court in the . . . case filed against the[] five largest banks” was

in force, and that he “is assisting the five largest banks in violating the” Consent Judgment. Id.

In fact, the plaintiff alleges that the Sheriff “has set a custom and policy to defy and ignore the”

Consent Judgment. Id. Based upon this policy, the Sheriff’s Department will “take actions in

defiance of the” Consent Judgment while “acting as agents for and on behalf of” BOA. Id.

Likewise, the plaintiff has named the Superior Court of the State of California, County of

San Joaquin as a defendant in the instant suit to enjoin the Superior Court “prospectively” from

issuing a future eviction notice. Id. ¶ 2.2

Based on the factual allegations outlined above, the plaintiff has styled seven causes of

action (“COA”): (1) “An order of Cease and Desist in the Nature of Injunctive Relief” for

“violation of the consent decree” to prevent the plaintiff’s eviction from her home (“First

COA”), FAC ¶¶ 2; 83; (2) “[v]iolation of the [plaintiff’s] Rights to Due Process of law and

Intentional infliction of emotional distress” (“Second COA”), id. ¶ 107; (3) “conspir[acy]” by the

2
The plaintiff has also named 20 unidentified “Doe” defendants allegedly involved in the foreclosure of her San
Joaquin County home.

3
defendants, in “violation of Section 1983, 1985 and 1986 of Title 42, US Code, [s]ince the Non-

state actors employed and used the state actors and government organs and instrumentalities to

carry out their unlawful activities” (“Third COA”), id. ¶ 122; and (4) violations of the Federal

False Claims Act, 31 U.S.C. § 3729, against all defendants (“Fourth, Sixth, and Seventh COAs”),

id. ¶¶ 127‒34; 144‒58, and against the Bank defendants (“Fifth COA”), id. ¶¶ 135‒43.

The plaintiff seeks declaratory relief to reverse the foreclosure sale, id. ¶ 168, to issue a

cease and desist order prohibiting “any further actions to sell the property subsequent to the

fraudulent foreclosure on this alleged debt” or to evict the plaintiff from the subject property, id.

¶¶ 170‒71, and a judgment declaring that BOA has never had any right to enforce the note, id. ¶

169. Additionally, the plaintiff seeks an award of compensatory damages “in an amount to be

proven at the time of trial.” Id. ¶ 161.

The plaintiff asserts that “jurisdiction to hear this case” is proper in this Court because

“this court issued a prior ruling in the United States v. BANK OF AMERICA, NA, et al. case

number 12 0361.” FAC ¶ 1. That consent judgment requires named financial service entities,

including BOA, to comply with certain loan servicing standards and further provides that

obligations under this Consent Judgment shall be enforceable solely in the U.S. District Court for

the District of Columbia. See Unrelated Consent Judgment at ¶¶ 6–8; Ex. E (“Enforcement

terms”) at E-14, ECF No. 11. The Unrelated Consent Judgment limits any enforcement actions

to “any Party to this Consent Judgment or the Monitoring Committee.” Id.; Enforcement terms at

E-14‒15. The only named party in the instant action that is also a party to the Unrelated Consent

Judgment is BOA. See generally Unrelated Consent Judgment.

On January 27, 2014, the plaintiff filed a Motion for a Temporary Restraining Order. See

Pl.’s Mot. Expediting Temporary Restraining Order, ECF No. 31. That motion is currently

4
pending before the Court.3 In addition, pending before the Court are motions by all defendants

to dismiss this action for improper venue, pursuant to Rule 12(b)(3) of the Federal Rules of Civil

Procedure. The Bank Defendants further move to dismiss this action on res judicata grounds,

for improper service and failure to state a claim, pursuant to Rules 12(b)(4) and (6), respectively,

and failure to comply with Rule 8(a). The Superior Court also moves to dismiss on res judicata

grounds, and the Sheriff Department Defendants move to dismiss for failure to state a claim

under Rule 12(b)(6). While the defendants have raised a number of grounds for dismissal that

have merit, for the reasons explained below, the motion by all defendants to dismiss the action

for improper venue is granted and the case is dismissed.4

II. LEGAL STANDARD

A. Improper Venue

Rule 12(b)(3) of the Federal Rules of Civil Procedure authorizes a party to move to

dismiss a case for “improper venue.” FED. R. CIV. P. 12(b)(3). Similarly, the federal venue

statute, 28 U.S.C. § 1406(a), requires that a district court “dismiss, or if it be in the interest of

justice, transfer” a case, which is filed “in the wrong division or district.” 28 U.S.C. § 1406(a).

Together, “Section 1406(a) and Rule 12(b)(3) allow dismissal only when venue is ‘wrong’ or

‘improper’. . . in the forum in which [the case] was brought.” Atl. Marine Constr. Co. v. United

States Dist. Court, 134 S. Ct. 568, 577 (2013). The Supreme Court explained that “[w]hether

venue is ‘wrong’ or ‘improper’ depends exclusively on whether the court in which the case was

brought satisfies the requirements of federal venue laws.” Id.

3
The plaintiff previously filed an “ex parte” motion for a preliminary injunction. See Pl.’s Request for Preliminary
Injunction, Ex Parte, ECF No. 25. This motion was stricken by the Court for failure to comply with Federal Rule of
Civil Procedure 65(a)(1) and Local Civil Rule 65.1. See Minute Order (Jan. 13, 2014).
4
For this reason, the plaintiff’s Motion for a Temporary Restraining Order is denied as moot.

5
 “When venue is challenged, the court must determine whether the case falls within one of

the three categories set out in § 1391(b),” id., which governs “the venue of all civil actions

brought in district courts of the United States.” 28 U.S.C. § 1391(a)(1). Specifically, venue of a

civil case is properly laid in the following three categories of judicial district: where “any

defendant resides, if all defendants are residents of the State in which the district is located;”

where “a substantial part of the events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is situated;” or where “any defendant

is subject to the court’s personal jurisdiction with respect to such action,” so long as venue is

unavailable in any other district. Id. § 1391(b).

The moving party objecting to venue must provide “sufficient specificity to put the

plaintiff on notice of the defect” that the case fails to fall within one the three categories set out

in section 1391(b).  14D CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §

3826, at 496 (4th ed. 2013). Nevertheless, the burden remains on the plaintiff to establish that

venue is proper since it is “‘the plaintiff’s obligation to institute the action in a permissible forum

. . . .’” Williams v. GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011) (quoting Freeman v.

Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003)); see also WRIGHT ET AL., § 3826, at 502, 505‒06

(“[W]hen [an] objection has been raised, the burden is on the plaintiff to establish that the district

he [or she] chose is a proper venue[,] . . . consistent with the plaintiff’s threshold obligation to

show that the case belongs to the particular district court in which the suit has been instituted.”).

In reviewing a motion for improper venue, the court “‘accepts the plaintiff’s well-pled factual

allegations regarding venue as true, draws all reasonable inferences from those allegations in the

plaintiff’s favor and resolves any factual conflicts in the plaintiff’s favor.’” Wilson v. Obama,

770 F. Supp. 2d 188, 190 (D.D.C. 2011) (quoting James v. Verizon Servs. Corp., 639 F. Supp. 2d

6
9, 11 (D.D.C. 2009)). The court may resolve the motion on the basis of the complaint alone, or,

as necessary, examine facts outside the complaint that are presented by the parties, while

drawing reasonable inferences in favor of the plaintiff. Herbert v. Sebelius, 925 F. Supp. 2d 13,

17‒18 (D.D.C. 2013).

B. Failure To State A Claim

The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests[.]’” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A motion

under Rule 12(b)(6) does not test a plaintiff’s likelihood of success on the merits; rather, it tests

whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a

complaint must offer “more than labels and conclusions” to provide “grounds” of “entitle[ment] to

relief.” Twombly, 550 U.S. at 555 (alteration in original). “Nor does a complaint suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Twombly, 550 U.S. at 557) (alteration in original). The Supreme Court stated “[t]o

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). A

claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly,

550 U.S. at 556).

Pro se plaintiffs are “[held] to less stringent standards than formal pleadings drafted by

lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see also Fletcher v. Reilly, 433

F.3d 867, 877 (D.C. Cir. 2006); United States v. Palmer, 296 F.3d 1135, 1143 (D.C. Cir. 2002);

7
Rogler v. U.S. Dep’t of Health and Human Servs., 620 F. Supp. 2d 123, 127 (D.D.C. 2009).

Nevertheless, “even a pro se complainant must plead ‘factual matter’ that permits the court to infer

‘more than the mere possibility of misconduct.’” Atherton v. District of Columbia Office of Mayor,

567 F.3d 672, 681–82 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at 679).

C. Issue Preclusion

“The preclusive effect of a judgment is defined by claim preclusion and issue preclusion,

which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892

(2008). Claim preclusion “forecloses ‘successive litigation of the very same claim, whether or

not relitigation of the claim raises the same issues as the earlier suit.’” Id. (quoting New

Hampshire v. Maine, 532 U.S. 742, 748 (2001)). In contrast, issue preclusion, which was “once

known as ‘collateral estoppel’ and ‘direct estoppel,’” bars “successive litigation of an issue of

fact or law actually litigated and resolved in a valid court determination essential to the prior

judgment, even if the issue recurs in the context of a different claim.” Id. at 892, n.5 (internal

quotations and citations omitted); see also U.S. Postal Serv. v. Am. Postal Workers Union, 553

F.3d 686, 696 (D.C. Cir. 2009) (“Under collateral estoppel, once a court has decided an issue of

fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit

on a different cause of action involving a party to the first case.”) (internal quotation marks and

citation omitted). The Supreme Court has explained that these preclusion doctrines serve the

important functions to “protect against ‘the expense and vexation attending multiple lawsuits,

conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the

possibility of inconsistent decisions.’” Taylor, 553 U.S. at 892 (quoting Montana v. United

States, 440 U.S. 147, 153–154 (1979)) (alteration in original); see also Yamaha Corp. of Am. v.

United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (“The objective of the doctrine of issue

preclusion . . . is judicial finality; it fulfills ‘the purpose for which civil courts have been

8
established, the conclusive resolution of disputes within their jurisdiction.’”) (quoting Kremer v.

Chemical Constr. Corp., 456 U.S. 461, 467 n.6 (1982)).

Three elements must be satisfied for a final judgment to preclude litigation of an issue in

a subsequent case: “[1], the same issue now being raised must have been contested by the parties

and submitted for judicial determination in the prior case[; 2] the issue must have been actually

and necessarily determined by a court of competent jurisdiction in that prior case [; and] [3]

preclusion in the second case must not work a basic unfairness to the party bound by the first

determination.” Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting

Yamaha, 961 F.2d at 254 (D.C. Cir. 1992)) (alterations in original). “[O]nce a court has decided

an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the

issue in a suit on a different cause of action involving a party to the first case.” McLaughlin v.

Bradlee, 803 F.2d 1197, 1201 (D.C. Cir. 1986) (quoting Allen v. McCurry, 449 U.S. 90, 94

(1980)).

The overriding goal of the issue preclusion doctrine is to “avert needless relitigation and

disturbance of repose, without inadvertently inducing extra litigation or unfairly sacrificing a

person’s day in court.” Otherson v. U.S. Dep’t of Justice, 711 F.2d 267, 273 (D.C.Cir.1983).

When the first two prerequisites for application of the issue preclusion doctrine are met, the

plaintiff “must be permitted to demonstrate, if he can, that he did not have a fair opportunity

procedurally, substantively, and evidentially to pursue his claim the first time.” Blonder–Tongue

Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 333 (1971) (internal quotation marks omitted).

As the Supreme Court explained, “a party who has had one fair and full opportunity to prove a

claim and has failed in that effort, should not be permitted to go to trial on the merits of that

claim a second time. Both orderliness and reasonable time saving in judicial administration

9
require that this be so unless some overriding consideration of fairness to a litigant dictates a

different result in the circumstances of a particular case.” Id. at 324–25.

Notably, “[a] court conducting an issue preclusion analysis does not review the merits of

the determinations in the earlier litigation.” Consol. Edison Co. of N.Y. v. Bodman, 449 F.3d

1254, 1257 (D.C. Cir. 2006); see also Nat’l Post Office Mail Handlers, Watchmen, Messengers,

and Grp. Leaders Div. of Laborers’ Int’l Union of N. Am. v. Am. Postal Workers Union, 907

F.2d 190, 194 (D.C. Cir. 1990) (“The doctrine of issue preclusion counsels us against reaching

the merits in this case, however, regardless of whether we would reject or accept our sister

circuit's position.”); Yamaha Corp. of Am. v. United States, 745 F. Supp. 734, 738 (D.D.C. 1990)

(noting the D.C. Circuit’s instruction “that collateral estoppel prevents a court from ever

reaching the merits”).

III. DISCUSSION

As noted, the plaintiff is seeking declaratory, injunctive, and compensatory relief to

prevent her eviction and the finalization of a foreclosure sale on the California Property. See

FAC ¶¶ 159‒176 (“Relief Requested” and “Additional Relief Requested”). Based on her

allegation that the defendants conspired with BOA in violation of the Unrelated Consent

Judgment, the plaintiff has filed her lawsuit in the District of Columbia. Id. ¶ 1. As explained

below, the Court agrees with the defendants that this jurisdiction is not the proper venue for this

action and further finds that dismissal, rather than transfer, is appropriate because the plaintiff

has also failed to state a claim upon which relief can be granted under Federal Rule of Civil

Procedure 12(b)(6) and her claims are otherwise precluded under res judicata principles.

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 A. Venue Is Improper In The District Of Columbia

This action fails to satisfy any of the three categories for proper venue in this district

under the general venue statute, 28 U.S.C. § 1391(b).5 First, the complaint does not allege that

any of the named defendants reside in the District of Columbia. FAC ¶ 23. Consequently, this

district is not one “in which any defendant resides, if all defendants are residents of the State in

which the district is located.” 28 U.S.C. § 1391(b)(1).

Second, this district is not where “a substantial part of the events or omissions giving rise

to the claim occurred, or a substantial part of property that is the subject of the action is situated.”

28 U.S.C. § 1391(b)(2). On the contrary, according to the complaint, none of the alleged actions

committed by the defendants occurred in the District of Columbia. See FAC, generally.

Specifically, the foreclosure sale and the anticipated unlawful detainer order would emanate

from the California Superior Court and involved the California Property located in that state.

FAC ¶ 23. Finally, if no other district is appropriate, venue is proper in “any judicial district in

which any defendant is subject to the court’s personal jurisdiction with respect to such action.”

28 U.S.C. § 1391(b)(3). Here, the Court need not reach the issue of whether “any defendant is

subject to the court’s personal jurisdiction,” because the predicate requirement is not met.

Specifically, there is another district that would be appropriate to hear this matter and that district

is where the disputed California Property is located, to wit: California.

In short, the lack of proper venue for this case in the District of Columbia is plain. The

complaint contains no allegations that any of the defendants reside in the District of Columbia,

5
This statutory provision states, in full: “A civil action [where jurisdiction is not founded solely on diversity of
citizenship] may be brought only in (1) a judicial district where any defendant resides, if all defendants are residents
of the State in which the district is located; (2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is
situated; or (3) if there is no district in which an action may otherwise be brought as provided by this section, any
judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.” 28
U.S.C. § 1391(b).

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that the property at issue is located in the District of Columbia, that the allegedly fraudulent

transfer of the loan took place in the District of Columbia, or that the allegedly unlawful

foreclosure or detainer action on the plaintiff’s property had any connection to this jurisdiction.

Nevertheless, the plaintiff asserts that venue is proper in this jurisdiction based upon the

Unrelated Consent Judgment. FAC ¶ 1. The Unrelated Consent Judgment, however, simply

does not create a private right of action allowing third parties, such as the plaintiff, to bring

claims for alleged violations of the Judgments, let alone unrelated claims in this jurisdiction. See

Ananiev v. Wells Fargo Bank, NA, No. 12-1804, 2013 U.S. Dist. LEXIS 130208, at *15‒16

(D.D.C. Sept. 12, 2013) (concluding that same Unrelated Consent Judgment did not confer

private right of action on non- party to consent decree, nor allow venue in this district for suit

relating to property in California); accord Rafferty v. NYNEX Corp., 60 F.3d 844, 849 (D.C. Cir.

1995) (“Unless a government consent [judgment] stipulates that it may be enforced by a third

party beneficiary, only the parties to the [judgment] can seek enforcement of it.”); Beckett v. Air

Line Pilots Ass’n, 995 F.2d 280, 288 (D.C. Cir. 1993) (“Only the Government can seek

enforcement of its consent [judgments] . . . therefore, even if the Government intended its

consent [judgment] to benefit a third party, that party could not enforce it unless the [judgment]

so provided.”). Accordingly, the plaintiff’s reliance on the Unrelated Consent Judgment as the

basis for venue in the District of Columbia is simply misplaced and venue in this jurisdiction is

improper.

B. Dismissal Rather Than Transfer Is Appropriate

Under 28 U.S.C. § 1406(a), the district court shall dismiss an action filed in an improper

venue or, if it is in the interest of justice, transfer such case to any district in which it could have

been brought. The decision of whether dismissal or transfer is “in the interest of justice” is

12
committed to the sound discretion of the district court. Naartex Consulting Corp. v. Watt, 722

F.2d 779, 789 (D.C. Cir. 1983); Corbett v. Jennifer, 888 F. Supp. 2d 42, 46 (D.D.C. 2012).

While “the standard remedy for improper venue is to transfer the case to the proper court rather

than dismissing it,” National Wildlife Fed’n v. Browner, 237 F.3d 670, 674 (D.C. Cir. 2001),

dismissal is appropriate “when the outcome is foreordained,” Simpkins v. District of Columbia

Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997) (noting that “it made little sense to transfer the case to

another jurisdiction pursuant to 28 U.S.C. § 1406” since “[t]hat would have kept the case alive

only until the next court looked it over and found it wanting”). See also Buchanan v. Manley,

145 F.3d 386, 389 n.6 (D.C. Cir. 1998) (no abuse of discretion for district court to dismiss rather

than transfer where there were “substantive problems” with the plaintiff's claims); Laukus v.

United States, 691 F. Supp. 2d 119, 127 (D.D.C. 2010) (citing Phillips v. Seiter, 173 F.3d 609,

610–11 (7th Cir. 1999)) (district courts may take a “peek at the merits” when deciding whether a

transfer is in the interests of justice); Roman-Salgado v. Holder, 730 F. Supp. 2d 126, 131

(D.D.C. 2010) (dismissing rather than transferring case for improper venue where “it appears

that the complaint in its current form would likely face dismissal without prejudice for failure to

state a claim”).

A review of the plaintiff’s FAC demonstrates significant, substantive problems with the

plaintiff’s claims. These deficiencies, in turn, are such that transfer of this case to another

district court would only “delay[] the inevitable” and not be “in keeping with the Supreme

Court’s instruction to the lower federal courts ‘to weed out’ insubstantial [] suits

‘expeditiously.’” Simpkins, 108 F.3d at 370.

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 1. First COA: Defendants’ Alleged Conspiracy To Violate The Consent
Judgment

The plaintiff’s First COA attempts to describe the various actions undertaken by the

defendants in violation of the Unrelated Consent Judgment. FAC ¶ 83. The plaintiff was not a

party to this consent judgment, and therefore, is unable to enforce any obligation imposed upon

the parties to the judgment. See Enforcement terms at E-14–15. Consequently, the plaintiff’s

First COA is dismissed for failure to state a claim upon which relief may be granted.

2. Second and Third COA: Alleged Due Process Violation, Intentional
Infliction Of Emotional Distress And Conspiracy Claims

The plaintiff’s Second and Third COA address a myriad of claims that have been

previously raised by the plaintiff in an earlier suit against the same defendants, premised on the

foreclosure of the same property in San Joaquin County, California. On January 15, 2010, the

plaintiff filed suit in the District Court for the District of Columbia against BOA, the Sheriff’s

Department defendants, and the Superior Court. See Compl. ¶¶ 16‒17, McCain v. Bank of Am.,

N.A., No. 10-cv-84 (D.D.C. Jan. 15, 2010) (“McCain I”), ECF No. 1. In the complaint, the

plaintiff sought to quiet title on her property located in San Joaquin County, sought a cease and

desist order for foreclosure notices, and sought a cease and desist order preventing foreclosure of

a loan obtained for the property. See id. ¶¶ 46‒107. After noting that the action pertained solely

to California interests, involved a “California resident against defendants including the Superior

Court and Sheriff for San Joaquin County, California, and asserted a claim to quiet title over

property located in . . . California,” the court transferred the matter to the District Court for the

Eastern District of California. Order at 1‒2, ECF No. 18.

The district court in California, in turn, dismissed the suit with prejudice, noting that in

addition to the plaintiff’s quite title and fraudulent inducement claims, the “[p]laintiff further

14
alleges her due process rights have been violated in connection with nonjudicial foreclosure.”

McCain v. Bank of Am., NA, CIV 10-1266, 2010 U.S. Dist. LEXIS 113956, at *2 (E.D. Cal. Oct.

26, 2010) (“McCain II”). The district court held that the “plaintiff’s due process claim is fatally

deficient in that this claim rests upon the assertion that her property cannot be foreclosed upon

unless defendant Bank of America demonstrates it is the holder of the note. This assertion is

untenable because under the California nonjudicial foreclosure statutes, the trustee or beneficiary

is not required to be a holder in due course of the instrument.” Id. at *3 (internal citations

omitted). The district court also dismissed the plaintiff’s 42 U.S.C. § 1983 claim, which was

premised on “allegations that some of the defendants were involved, in various ways, with a

nonjudicial foreclosure sale because such activities do not constitute state action.” Id. (internal

citations omitted). Finally, the plaintiff sought to prevent the Superior Court “from acting on any

unlawful detainer action brought against her.” Id. at *4. The court found that this claim was

barred by the Eleventh Amendment. Id.

The Bank defendants and the Superior Court argue that the prior resolution of the

plaintiff’s 2010 suit precludes the plaintiff from re-raising these same arguments in the instant

complaint. See Bank Defs.’ Mem. Supp. Mot. Dismiss (“Bank Defs.’ Mem.”) at 4, ECF No. 19;

Superior Court Def. Mem. Supp. Mot. Dismiss (“Sup. Court Mem.”) at 3, ECF No. 9-2. The

fact that the causes of action in the instant suit are not identical to the causes of action in the prior

McCain II suit is not an impediment to the application of collateral estoppel. “Whether two

cases implicate the same cause of action turns on whether they share the same ‘nucleus of

facts.’” Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004) (quoting Drake, 291 F.3d at

66); Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984). Plainly, the factual allegations

underpinning the plaintiff’s current claims mirror those in the dismissed action. In the dismissed

15
action, the plaintiff claimed to “prospectively” prevent any unlawful detainer action and her due

process and § 1983 claims were dismissed. See McCain II, 2010 U.S. Dist. LEXIS 113956 at *5.

There are even more similarities. The FAC avers that BOA is barred from seeking foreclosure

on the plaintiff’s home absent demonstrating that it is the holder of the note. FAC ¶ 27. The

district court directly refuted this assertion, noting that under California law “the trustee or

beneficiary is not required to be a holder in due course.” McCain II, 2010 U.S. Dist. LEXIS

113956 at *3.

The plaintiff s had ample opportunity to raise in her prior suit the same claims and

arguments raised in the instant suit. She has already had her day in court. See Martin, 488 F.3d

at 454. In these circumstances, preclusion would not be unfair to the plaintiff and, therefore, her

Second and Third COAs are dismissed under the doctrine of issue preclusion.6

3. Fourth, Fifth, Sixth, and Seventh COA: Plaintiff’s Federal False
Claims Act Claims

In contrast to the plaintiff’s 2010 suit, the FAC contains four claims premised on

violations of the Federal False Claims Act, 31 U.S.C. § 3729 et seq. See FAC ¶¶ 127‒58. To the

extent that the plaintiff seeks to avoid the preclusive effects stemming from the dismissal, with

prejudice, of her previous suit, the complaint is utterly devoid of the factual elements necessary

to state a claim under the False Claims Act. “A proper False Claims Act claim has three

elements: (1) the defendant presented a claim for payment or approval to the government, (2) the

claim was ‘false or fraudulent,’ and (3) the defendant acted knowing that the claim was false.”

6
The plaintiff’s first COA appears to include alleged violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq. See FAC ¶ 105. Alleged violations of the FDCPA were asserted by the
plaintiff in McCain II but dismissed with prejudice. McCain I, 2010 U.S. Dist. LEXIS 113956, at *5 n.2.
Consequently, to the extent that the plaintiff asserts FDCPA violations against the same defendants as in McCain II,
those claims are also precluded.

16
U.S. ex rel. Folliard v. Govplace, 930 F. Supp. 2d 123, 127 (D.D.C. 2013) (internal citations

omitted). None of these elements is addressed by the plaintiff.

Additionally, and critically for the plaintiff’s False Claims Act claims, a relator in a qui

tam action may not proceed pro se. See U.S. ex rel. Fisher v. Network Software Assocs., 377 F.

Supp. 2d 195, 196 (D.D.C. 2005); Rockefeller v. Westinghouse Elec. Co., 274 F. Supp. 2d 10, 12

(D.D.C. 2003) (holding that “[t]he need for adequate legal representation on behalf of the United

States is obviously essential.”). As the plaintiff makes clear, she is proceeding ex relatione

seeking “to recover, on behalf of the United States of America, the States [sic] of California,

damages and civil penalties arising from the sale” of assets-backed securities, “using funds

provided by the United States.” FAC ¶ 4. The plaintiff’s Fourth, Fifth, Sixth, and Seventh

COAs are therefore dismissed for failure to state a claim upon which relief can be granted.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motions to dismiss for improper venue, ECF

Nos. 9, 10, 15, and 16, are GRANTED, and the plaintiff’s Motion for a Temporary Restraining

Order, ECF No. 31, is DENIED as moot.

An appropriate Order accompanies this Memorandum Opinion.

Digitally signed by Beryl A. Howell

Date: January 30, 2014 DN: cn=Beryl A. Howell, o=District
Court for the District of Columbia,
ou=District Court Judge,
email=howell_chambers@dcd.uscou
rts.gov, c=US

__________________________
Date: 2014.01.30 20:00:34 -05'00'

BERYL A. HOWELL
United States District Judge

17