(PS)Seymour v. Wilshire Credit Corporation Home Loans Direct ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARITY PANTALION SEYMOUR, No. 2:19–cv–00564–KJM–KJN PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 WILSHIRE CREDIT CORPORATION HOME LOANS DIRECT, ET AL., 15 Defendants. 16 17 18 On June 29, 2023, the assigned district judge reassigned this case to the undersigned due 19 to plaintiff’s pro se status. (ECF No. 51.) See also L.R. 302(c)(21). On September 11, 2023, 20 plaintiff filed a motion to appoint counsel in this case. (ECF No. 56.) Because plaintiff has not 21 set forth exceptional circumstances, the undersigned recommends denying plaintiff’s motion to 22 appoint counsel. 23 Further, the assigned district judge has dismissed defendants Nationstar, Mr. Cooper, and 24 U.S. Bank from this action; thus only defendants Wilshire Credit Corporation Home Loans 25 Direct, DE HDL INC., and Lodes Capital Escrow Company remain. (See ECF No. 21.) Though 26 the remaining defendants have not appeared or moved to dismiss, the undersigned further 27 recommends dismissing the remaining defendants sua sponte and closing this case. 28 //// 1 I. Motion t o Appoint Counsel, ECF No. 56 2 Under Title 28 U.S.C. § 1915, this court has discretionary authority to appoint counsel for 3 an indigent to commence, prosecute, or defend a civil action. See 28 U.S.C. § 1915(e)(1) (stating 4 the court has authority to appoint counsel for people unable to afford counsel). However, motions 5 to appoint counsel in civil cases are granted only in “exceptional circumstances.” United States v. 6 McQuade, 519 F.2d 1180, 1181 (9th Cir. 1978). The court may consider many factors to 7 determine if exceptional circumstances warrant appointment of counsel including, but not limited 8 to, proof of indigence, the likelihood of success on the merits, and the ability of the plaintiff to 9 articulate his or her claims pro se in light of the complexity of the legal issues involved. Id. 10 Here, plaintiff has not alleged exceptional circumstances that warrant appointing counsel. 11 Accordingly, the undersigned recommends that the motion to appoint counsel be DENIED. 12 II. Nonmoving defendants 13 A district court may, sua sponte, dismiss defendants who have not moved to dismiss 14 where such defendants are in a position similar to that of moving defendants or where claims 15 against such defendants are integrally related.” Silverton v. Dep’t of Treasury, 644 F.2d 1341, 16 1345 (9th Cir. 1981). “Such a dismissal may be made without notice where the [plaintiffs] cannot 17 possibly win relief.” Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987). The 18 court’s authority in this regard includes sua sponte dismissal as to defendants who have not been 19 served and defendants who have not yet answered or appeared. Columbia Steel Fabricators, Inc. 20 v. Ahlstrom Recovery, 44 F.3d 800, 802 (9th Cir. 1995) (“We have upheld dismissal with 21 prejudice in favor of a party which had not yet appeared, on the basis of facts presented by other 22 defendants which had appeared”); see also Bach v. Mason, 190 F.R.D. 567, 571 (D. Idaho 23 1999); Ricotta v. California, 4 F. Supp. 2d 961, 978-79 (S.D. Cal. 1998). 24 Plaintiff’s entire complaint concerns the alleged loan recission and impending foreclosure 25 of her home. (See generally ECF No. 1.) The moving defendants (Nationstar, Mr. Cooper, and 26 U.S. Bank) are successors-in-interest to the non-moving and remaining defendants (Wilshire 27 Credit Corporation Home Loans Direct, DE HDL INC., and Lodes Capital Escrow Company). 28 (Id.) The district judge has already determined that plaintiff’s claims against the moving 1 | defendants are barred by res judicata. (ECF No. 21.) The same preclusion principles apply to the 2 || remaining defendants, especially because the non-moving defendants were named as parties to 3 || the original action in which a final decision on the merits was rendered. Pantalion v. ResMAE 4 | Mort. Corp., No. 2:09-CV-02262-MCE-GGH, at *1 (E.D. Cal. June 23, 2010). Accordingly, the 5 || court recommends DISMISSAL of the non-moving defendant’s claims. 6 FINDINGS AND RECOMMENDATIONS 7 Accordingly, the undersigned HEREBY RECOMMENDS that: 8 1) The Motion to Appoint Counsel, ECF No. 56, be DENIED; 9 2) This action be dismissed as to the remaining defendants; and 10 3) The Clerk of Court be directed to close this case. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within fourteen (14) 13 || days after being served with these findings and recommendations, any party may file written 14 || objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 16 || shall be served on all parties and filed with the court within fourteen (14) days after service of the 17 || objections. The parties are advised that failure to file objections within the specified time may 18 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 19 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 20 | Dated: October 10, 2023 Aectl Aharon 22 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 23 seym.0564 24 25 26 27 28