“It is well established that a district 7 court has broad discretion to control its own docket, and that includes the power to dismiss 8 duplicative claims.”
How later courts described this case
- “It is well established that a district 7 court has broad discretion to control its own docket, and that includes the power to dismiss 8 duplicative claims.”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10
11 TERRANCE MARSH, et al., Case No. 1:23-cv-01451-JLT-EPG
12 Plaintiffs, FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT (1) FREEDOM
13 v. MORTGAGE CORPORATION’S MOTION
TO DISMISS BE GRANTED; (2) THE
14 FREEDOM MORTGAGE CORPORATION, CLAIMS AGAINST DEFENDANT
et al., NESTOR SOLUTIONS LLC BE
15 DISMISSED; AND (3) THIS ACTION BE
Defendants. DISMISSED WITHOUT PREJUDICE
16
(ECF Nos. 83, 85)
17
OBJECTIONS, IF ANY, DUE WITHIN
18 THIRTY (30) DAYS
19 ORDER TO ADD NESTOR SOLUTIONS
LLC AS A DEFENDANT ON THE
20 DOCKET
21
22
I. INTRODUCTION
23
Plaintiffs Terrance Marsh and Gesele Marsh proceed pro se and in forma pauperis (IFP)
24 in this civil action. (ECF Nos. 1, 7, 9, 83). Plaintiffs commenced this action on October 10, 2023
25 by filing a complaint against Defendant Freedom Mortgage Corporation (Freedom). (ECF No. 1).
26 On October 3, 2025, Plaintiffs filed a second amended complaint against Freedom and Defendant
27
28
1 Nestor Solutions LLC (Nestor).1 (ECF No. 83). Plaintiffs’ second amended complaint alleges that
2 Freedom and Nestor violated Federal and state laws related to the administration of their
3 mortgage on their property. (ECF No. 83).
4 Now before the Court is Freedom’s motion to dismiss Plaintiffs’ second amended
5
complaint.2 (ECF No. 85). Freedom argues that Plaintiff’s complaint is duplicative of another
lawsuit in this District and fails to state cognizable claims against it.
6
As further explained below, Plaintiffs have filed untimely oppositions to the motion to
7
dismiss. (ECF Nos. 95, 96).
8
Freedom argues that the untimely oppositions should not be considered, but even if the
9
Court were to consider Plaintiffs’ arguments, they fail to address its argument that their lawsuit is
10
duplicative of another case in this District. (ECF No. 97).
11
Additionally, as Plaintiffs’ second amended complaint for the first time asserts claims
12
against Nestor, those claims are before this Court for screening.
13
For the reasons given below, the Court will recommend that (1) Freedom’s motion to
14
dismiss be granted; (2) the claims against Nestor be dismissed; and (3) this action be dismissed in
15
its entirety without prejudice.
16 II. BACKGROUND
17 A. Plaintiffs’ Original Complaint
18 Plaintiffs filed this case against Freedom on October 10, 2023. (ECF No. 1). Plaintiffs’
19 original complaint included only the following factual allegations:
Defendants reported false information to all major credit bureaus on both plaintiffs
20
record, causing credit scores to plummet and denial of credit from other agencies,
21 including the sale or refinance of the home with defendant. defendant and their
affiliates made numerous inquiries on plaintiffs credit. Defendants falsely reported
22 late payments on report, bringing score down. plaintiffs complained to credit
bureaus and supplied all rec[ei]pts for the defendants claim to dates of accounts
23 not paid by plaintiff. Defendants has not fixed problem and credit score damage
had already been done and plaintiffs credit continues to be harshly affected and
24
plaintiffs cannot get a refinance due to false credit reporting.
25 (ECF No. 1, at p. 4).
26
27 1 As Nestor Solutions LLC is not currently listed on the docket, the Court will direct the Clerk of Court to
add this Defendant.
28 2 The assigned District Judge referred this motion to the undersigned on November 4, 2025. (ECF No. 86).
1 The Court screened the initial complaint on November 27, 2023, concluding that
2 Plaintiffs’ complaint failed to state any cognizable claims, and granted leave to amend. (ECF No.
3 8).
4 B. Plaintiffs’ First Amended Complaint
5 Plaintiffs filed a first amended complaint against Freedom on December 22, 2023. (ECF
No. 9). The Court screened the first amended complaint and found that it sufficiently stated a
6
claim against Freedom for violation of Section 1681s-2(b) of the Fair Credit Reporting Act
7
(FCRA) to proceed past screening. (ECF No. 10, p. 5) (“Plaintiffs have sufficiently alleged that a
8
consumer reporting agency notified Defendant of the disputed information. Third, Plaintiffs
9
allege that, despite being notified of disputes regarding credit information, Defendant failed to
10
take the remedial measures outlined in the statute, e.g., it “failed to rectify the reported
11
inaccuracies.”).
12
On January 26, 2024, the Court directed Plaintiffs to complete necessary forms for service
13
on Freedom. (ECF No. 11).
14
After Plaintiffs repeatedly failed to provide sufficient information to facilitate service on
15
Freedom, on July 22, 2024, the Court issued findings and recommendations that this case be
16 dismissed without prejudice because of Plaintiffs’ failure to comply with court orders and failure
17 to provide an address for the United States Marshals Service (USMS) to serve defendant. (ECF
18 No. 21). On August 19, 2024, Plaintiffs filed objections to the findings and recommendations,
19 which included an additional address to serve Freedom. (ECF No. 23). On August 21, 2024, the
20 Court vacated its findings and recommendations for dismissal and gave Plaintiffs an additional
21 opportunity to return service documents for USMS service. (ECF No. 24).
22 Subsequently, Plaintiffs’ first amended complaint was served on Freedom, and Freedom
23 filed a waiver of service on September 11, 2024. (ECF No. 28).
On December 10, 2024, Freedom filed a motion to dismiss Plaintiffs’ complaint. (ECF
24
No. 34). However, as Freedom’s motion to dismiss addressed the allegations in Plaintiffs’ initial
25
complaint, rather than the operative first amended complaint, the Court issued findings and
26
recommendations that Freedom’s motion to dismiss be denied. (ECF No. 47). The District Judge
27
adopted the Court’s findings and recommendations on February 26, 2025, denying Defendant’s
28
1 motion to dismiss because it failed to address Plaintiffs’ operative complaint. (ECF No. 48).
2 C. Plaintiffs File Another Case on Same Allegations
3 In the meantime, as explained in Freedom’s notice of related case, on March 28, 2024,
4 Plaintiffs filed another case in the Superior Court for the State of California County of Kern, titled
5 Terrance Marsh and Gesele Marsh vs. Freedom Mortgage, Case No. BCV24101027. (ECF No.
39). That case was later removed to Federal court and now proceeds in this District in the case of
6
Marsh, et al. v. Freedom Mortgage Corporation, United States District Court for the Eastern
7
District of California, Case No. 1:24-CV-01304-JLT-CDB (Related Case) on Plaintiffs’ first
8
amended complaint, filed on December 9, 2024 (Related Case, ECF No. 13).
9
Freedom’s notice of related case describes that Related Case as follows:
10
The parties in the Related Action and this instant action (“Instant Action”)
11 (collectively, the “Actions”) are identical. The Plaintiffs in both Actions are
Terrance Marsh and Gesele Marsh (“Plaintiffs”) and the Defendant in both Actions
12 is Freedom Mortgage Corporation (“Freedom”). Plaintiffs represent themselves in
both Actions and Counsel for Freedom is the same in both Actions. As alleged in
13
the Related Action, Plaintiffs reside at 10140 Mendiburu Road California City, CA
14 93505 (the “Property”). Related Action Amended Complaint (“Compl.”). at 1-2.
Plaintiffs allege they entered into an agreement with Freedom in September of
15 2021 for a full modification of their VA loan (“Loan Agreement”). Compl. at 1-2.
Allegedly, the Loan Agreement required Plaintiffs to make “higher monthly
16 payments for a period of 90 days, after, which, the original interest rate before the
pandemic would stay the same on Plaintiffs VA backed loan, and a full
17
modification would be sent.” Id at 2. Plaintiffs allege they made payments on their
18 loan for over two years and that Freedom did not fulfill its promise to give credits
for payments and did not send a modification agreement. Id at 3.
19
Plaintiffs allege that in 2023 Freedom sent Plaintiffs a partial modification plan
20 “after two years of broken agreement, and a continuous payment from Plaintiff
without any qualification of rescindment”. Id at 3. Plaintiffs claim they were
21 prevented from using equity in their Property during that time to pay accounts due
to false and inaccurate reporting to credit bureaus by Freedom. Id at 8. Plaintiffs
22 allege that Freedom placed Plaintiffs’ home in foreclosure/default because of their
inaccurate reporting. Id. Based on the foregoing, Plaintiffs’ Amended Complaint in
23
the Related Action asserts a claim for promissory estoppel and requests
24 preliminary and permanent injunctive relief from foreclosure and equitable
disgorgement. Compl. at 1. Plaintiffs seek actual, special or exemplary and
25 punitive damages. Id. at 1, 10.
26 Plaintiffs are before this Court again, concerning claims that pertain to the same
Property and based on the same set of facts. See generally Instant Action and
27 Related Action. Accordingly, this Instant action and the Related Action are related
cases because each action involves the same parties, same transactions and events,
28
1 same questions of fact and/or law, and would therefore entail a substantial
duplication of labor if the Actions were heard by different judges and/or
2
magistrates.
3 (ECF No. 39, at pp. 2-3).
4 In the Related Case, Freedom filed a motion to dismiss Plaintiffs’ first amended complaint
5 on January 8, 2025, which remains pending. (Related Case, ECF No. 17).3
6 D. Plaintiffs Second Amended Complaint
7 On August 6, 2025, in this case, the Court approved the parties’ stipulation for Plaintiffs
8 to file a second amended complaint, which was ultimately filed on October 3, 2025. (ECF Nos.
77, 83). In addition to asserting the one claim that the Court previously allowed to proceed, for
9
violation of the FCRA against Freedom, the second amended complaint also includes additional
10
claims for negligence, Violations of Business and Profession Code § 17200, Unjust Enrichment,
11
Breach of the Implied Covenant Good Faith and Fair Dealing, and Violation of HBOR 2923.7
12
2923.6 2924.11 2923.55 2924.9. (ECF No. 83, p. 1). It also adds an additional defendant: Nestor.
13
As with the previous complaints, Plaintiffs’ claims in the second amended complaint stem
14
from Plaintiffs’ allegation that they own a property, and in connection with the mortgage on the
15
property administered by Defendants, Defendants improperly filed a notice of default and
16
reported inaccurate credit information. (See id. at 2-4).
17
III. FREEDOM’S MOTION TO DISMISS
18
A. Freedom’s Motion to Dismiss Plaintiffs’ Second Amended Complaint
19 Freedom moved to dismiss Plaintiffs’ second amended complaint in this case on October
20 31, 2025. (ECF No. 85). Freedom first argues that Plaintiffs’ second amended complaint should
21 be dismissed as duplicative Plaintiff’s pending claims in Marsh, et al. v. Freedom Mortgage
22 Corporation, 1:24-cv-1304-JLT-CDB, where a motion to dismiss is already pending. (ECF No.
23 85, pp. 10-12; see ECF Nos. 13, 17 of Case No. 1:24-cv-1304-JLT-CDB). Freedom argues that
24 the claims in this case are “based on the same allegations as in the Companion Case,” with the
25 operative first amended complaint in that case being filed on December 9, 2024, i.e., before the
26 October 3, 2025 filing of the second amended complaint in the instant case. (ECF No. 85, pp. 8,
27
3 The parties in this case and the Related Case made multiple attempts to participate in a settlement
28 conference, which were unsuccessful. (ECF Nos. 34, 35).
1 11).
2 Alternatively, Freedom argues that the claims in Plaintiffs’ Second Amended Complaint
3 should be dismissed on the merits: (1) the negligence claim should be dismissed as barred by the
4 economic loss doctrine and because it is preempted by the FCRA, (2) the claim for breach of the
5 covenant of good faith and fair dealing should be dismissed because Plaintiffs fail to state the
necessary elements of the claim and it is preempted by the FCRA; (3) the claim for violation of
6
California’s Business and Professions Code § 17200 should be dismissed because Plaintiffs fail to
7
state the necessary elements of the claim and fail to allege compensable damages; (4) the unjust
8
enrichment claim should be dismissed because it is not an independent cause of action, and if the
9
Court construes a quasi-contract claim from Plaintiffs’ allegations, such a claim is barred because
10
the parties have an express contract; (5) the FCRA and FDCPA claims should be dismissed
11
because they are not directed at Freedom, but rather a non-party listed in the second amended
12
complaint as “Nations Direct,” but even if the allegations where brought against Freedom,
13
Plaintiffs fail to state the necessary elements of the claim; and (6) the California Homeowner Bill
14
of Rights (HBOR) claims should be dismissed because Plaintiffs fail to state the necessary
15
elements of the claims. (Id. at pp. 10-23).
16 B. Plaintiffs Fail to Timely Oppose Motion to Dismiss
17 Plaintiffs failed to timely oppose Freedom’s motion to dismiss under Local Rule 230(c),
18 which requires a party to file any opposition within fourteen days.
19 On November 17, 2025, the Court issued a minute order noting Plaintiffs’ failure to
20 oppose the motion and gave them a single sua sponte extension of time to November 28, 2025, to
21 file an opposition, or statement of non-opposition, warning that them failure to timely respond
22 “may result in the dismissal of this case.” (ECF No. 87).
23 On December 7, 2025, Plaintiffs filed a “Notice of Corrected Filing,” stating that their
second amended complaint incorrectly listed the Court (i.e., the Kern County Superior Court),
24
instead of the Eastern District of California, and requesting leave to file a corrected version of the
25
second amended complaint on the docket. (ECF No. 92) (capitalization omitted). The Court
26
denied this request the next day, noting that the second amended complaint was properly filed in
27
this Court, despite listing the incorrect court, and concluding that it was not necessary to file a
28
1 second amended complaint. (ECF No. 94). Additionally, the Court noted that the second amended
2 complaint filed on October 3, 2025, remained the operative complaint and Freedom’s unopposed
3 motion to dismiss remained pending. (Id.).
4 C. Plaintiffs’ Untimely Opposition
5 On December 28, 2025, one month after the final deadline the Court gave Plaintiffs to
oppose Defendant’s motion to dismiss, Plaintiffs filed their opposition briefs. (ECF Nos. 95, 96).
6
Plaintiffs argue that they have stated valid claims.
7
Notably, Plaintiffs’ untimely opposition does not address Defendant’s argument that
8
Plaintiffs’ case is duplicative of Marsh, et al. v. Freedom Mortgage Corporation, 1:24-cv-1304-
9
JLT-CDB.
10
D. Freedom’s Reply
11
On January 6, 2026, Defendant Freedom filed its reply. (ECF No. 97). Defendant argues
12
that the Court should not consider Plaintiffs’ untimely oppositions, which, in any event, fail to
13
dispute its argument that this case is duplicative of Marsh, et al. v. Freedom Mortgage
14
Corporation, 1:24-cv-1304-JLT-CDB. (Id. at 2-4). Lastly, Defendant argues that dismissal is
15
warranted on the merits. (Id. at 5-7).
16 IV. LEGAL STANDARDS
17 A. Motions to Dismiss
18 Motions to dismiss under Fed. R. Civ. P. 12(b)(6) may be based on “the lack of a
19 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal
20 theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (citation
21 omitted). To survive such a motion, “a complaint must contain sufficient factual matter, accepted
22 as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662,
23 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
when a plaintiff pleads facts that permit the court to reasonably infer the defendant's liability for
24
the alleged misconduct. Id. A complaint does not suffice if it offers only “labels and conclusions,”
25
a “formulaic recitation of the elements,” or “naked assertion[s] devoid of further factual
26
enhancement.” Id. at 678 (quoting Twombly, 550 U.S. at 555, 557).
27
When ruling on a motion to dismiss, the court must accept all well-pleaded factual
28
1 allegations as true and construe all inferences in the light most favorable to the non-moving
2 party. Barker v. Riverside Cnty. Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (citations
3 omitted). The court need not, however, “accept as true allegations that are merely conclusory,
4 unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors,
5 266 F.3d 979, 988, opinion amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001).
Furthermore, although pro se pleadings are construed liberally, Hebbe v. Pliler, 627 F.3d 338,
6
341-42 (9th Cir. 2010), the court “may not supply essential elements of the claim that were not
7
initially pled.” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992), as amended (Oct. 9, 1992).
8
B. Failure to File a Timely Opposition to the Motion to Dismiss
9
A failure to timely oppose a motion may be construed as a non-opposition to the motion.
10
Specifically, Local Rule 230(c) provides as follows:
11
Opposition, if any, to the granting of the motion shall be in writing and shall be
12 filed and served no later than fourteen (14) days after the motion was filed. A
responding party who has no opposition to the granting of the motion shall serve
13 and file a statement to that effect, specifically designating the motion in question.
No party will be entitled to be heard in opposition to a motion at oral arguments if
14
opposition to the motion has not been timely filed by that party. See L.R. 135. A
15 failure to file a timely opposition may also be construed by the Court as a
nonopposition to the motion.
16
Local Rule 230(c) (emphasis added).
17
Noting that “[f]ailure to follow a district court’s local rules is a proper ground for
18 dismissal,” the Ninth Circuit in Ghazali v. Moran upheld a district court’s dismissal of a case
19 “pursuant to a Nevada district court local rule because [the plaintiff] failed to file an opposition to
20 the motion [by the defendants] to compel/motion to dismiss.” Ghazali v. Moran, 46 F.3d 52, 53
21 (9th Cir. 1995) (per curiam). In so doing, the Ninth Circuit noted that, while a motion for
22 summary judgment “cannot be granted simply as a sanction for a local rule violation, without an
23 appropriate exercise of discretion,” the relevant caselaw behind this rule “address[ed] only
24 summary judgment motions, not motions to dismiss.” Id. at 54. However, the Ninth Circuit
25 concluded that,
[b]efore dismissing the action, the district court is required to weigh several
26
factors: (1) the public’s interest in expeditious resolution of litigation; (2) the
27 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)
the public policy favoring disposition of cases of their merits; and (5) the
28 availability of less drastic sanctions.
1 Id. at 53 (citation and quotation marks omitted); see also Sidorov ex rel. Natalya v. Transamerica
2 Life Ins. Co., No. 2:17-CV-00002-KJM-DB, 2017 WL 2911676, at *2 (E.D. Cal. July 7,
3 2017) (“Although a court may not grant a motion for summary judgment simply because there is
4 no opposition, the Ninth Circuit has repeatedly affirmed district courts that have dismissed a
5 complaint on that basis.”) (citations omitted).
Additionally, the failure to obey court orders is another ground for imposing the sanction
6
of dismissal and warrants consideration of the same factors. See Malone v. United States Postal
7
Service, 833 F.2d 128, 130 (9th Cir.1987) (listing the same above factors for consideration before
8
dismissing a case for failure to comply with a court order).
9
Additionally, Local Rule 110 provides as follows: “Failure of counsel or of a party to
10
comply with these Rules or with any order of the Court may be grounds for imposition by the
11
Court of any and all sanctions authorized by statute or Rule or within the inherent power of the
12
Court.” Local Rule 110; see also Local Rule 183 (noting that “[a]ll obligations placed on
13
‘counsel’ by these Rules apply to individuals appearing in propria persona. Failure to comply
14
therewith may be ground for dismissal, judgment by default, or any other sanction appropriate
15
under these Rules.”)
16 Courts have relied on both Local Rule 230(c) and Local Rule 110 to dismiss claims when
17 a plaintiff fails to timely respond to a motion to dismiss and court order about such failure to
18 respond. See, e.g., Littleton v. Pac. Gas & Elec. Co., No. 2:12-CV-02236-TLN-AC, 2013 WL
19 3804769, at *1 (E.D. Cal. July 18, 2013) (relying on Ghazali, Local Rule 230(c), and Local Rule
20 110 to dismiss claims with prejudice after the plaintiff failed to respond to the defendants’
21 motions to dismiss).
22 C. Screening Requirement
23 Claims brought by plaintiffs proceeding in forma pauperis are also subject to screening
under 28 U.S.C. § 1915. (ECF No. 7). “Notwithstanding any filing fee, or any portion thereof,
24
that may have been paid, the court shall dismiss the case at any time if the court determines that
25
the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. §
26
1915(e)(2)(B)(ii).
27
A complaint is required to contain “a short and plain statement of the claim showing that
28
1 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
2 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
3 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
4 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient
5 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). The mere possibility of misconduct falls short of meeting
6
this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are
7
not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677,
8
681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a plaintiff’s
9
legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. Pleadings of pro se plaintiffs
10
“must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v.
11
Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
12
V. ANALYSIS
13
A. Freedom’s Motion to Dismiss
14
With these standards in mind, and in light of Plaintiffs’ failure to timely oppose the
15
motion to dismiss as ordered, the Court recommends granting Defendant Freedom’s motion to
16 dismiss.
17 As Freedom’s motion first argues, Plaintiffs are currently litigating similar claims against
18 it, based on the same underlying allegations, in a Related Case in this district, Case No. 1:24-cv-
19 1304-JLT-CDB. Defendant’s motion explains:
20 The new allegations and claims asserted in the SAC are based on the same
allegations as in the Companion Case, against the same parties, and pending at the
21 same time. In the Companion Case, Plaintiffs base their allegations on the trial
loan modification Freedom allegedly offered Plaintiffs and which they accepted on
22
September 17, 2021. Companion Case, DN 13, 2:8-13. Plaintiffs further allege,
23 just as in the present SAC, that they began making payments in accordance with
the permanently modified loan on November 1, 2021, continuing with the required
24 payments through May 1, 2023. Companion Case, DN 13, 2:14-18. Even more
telling, Plaintiffs allege incredibly similar claims in both cases, including FCRA
25 and HBOR claims. See Companion Case, DN 13.
26 (ECF No. 85, p. 11).
27 Notably, Plaintiffs filed the operative complaint in the Related Case on December 9, 2024
28 (Related Case, ECF No. 13), almost ten months before Plaintiffs filed their second amended
1 complaint in this case on October 3, 2025. (ECF No. 83). Defendant’s motion to dismiss
2 Plaintiffs’ claims in the Related Case is currently pending.
3 “Plaintiffs generally have no right to maintain two separate actions involving the same
4 subject matter at the same time in the same court and against the same defendant.” Adams v. Cal.
5 Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (citation and quotation marks omitted)
(overruled in part on other grounds by, Taylor v. Sturgell, 553 U.S. 880 (2008)); see also M.M. v.
6
Lafayette School Dist., 681 F.3d 1082, 1091 (9th Cir. 2012) (“It is well established that a district
7
court has broad discretion to control its own docket, and that includes the power to dismiss
8
duplicative claims.”); Porter v. Mabus, 457 Fed. Appx. 619, 620 (9th Cir. 2011) (unpublished)
9
(“The district court did not abuse its discretion by dismissing Porter’s claims that were
10
duplicative of his claims in his other pending actions.”) (citing Adams, 487 F.3d at 688).
11
Plaintiffs failed to timely file an opposition to Freedom’s motion to dismiss. (ECF Nos.
12
87, 95, 96). Moreover, Plaintiffs’ untimely oppositions failed to respond to Defendant’s argument
13
that this action is duplicative of the Related Case. Based on the Court’s review of the Related
14
Case, the Court agrees that the claims in this case are based on the same underlying conduct in the
15
Related Case and are duplicative of the claims in this case.
16 Defendant’s motion to dismiss otherwise provides a colorable legal basis to dismiss each
17 of Plaintiffs’ claims against it for failure to state a claim. Specifically, Defendant’s motion argues
18 as follows:
19 • Plaintiffs’ negligence claim is barred by the economic loss doctrine. Under
California law, Plaintiffs may not recover economic losses under alternative tort
20 theories when the parties’ relationship is governed by contract. . Sheen v. Wells
Fargo Bank, N.A., 12 Cal. 5th 905, 915-916; 922 (Cal. 2022). . . . Here, Plaintiffs’
21
negligence claim, sounding in tort law, is clearly barred by the economic loss
22 doctrine as in Sheen. Plaintiffs admit they entered into a contract with Freedom
that provided the terms governing their mortgage.
23
• As the California Court of Appeal has emphasized, “[t]he implied covenant of
24
good faith and fair dealing is limited to assuring compliance with the express terms
25 of the contract, and cannot be extended to create obligations not contemplated by
the contract.” Pasadena Live, LLC v. City of Pasadena, 114 Cal. App. 4th 1089,
26 1094 (Cal. Ct. App. 2004). Federal courts applying this point of California law
have consistently applied this same rule. As the Ninth Circuit Court of Appeals
27 explained: “Assuming arguendo that the implied duty of good faith and fair
dealing applies here, it is limited to assuring compliance with the express terms of
28
1 the contract, and cannot be extended to create obligations not contemplated by the
contract.” McKnight v. Torres, 563 F.3d 890, 893 (9th Cir. 2009). As alleged,
2
Plaintiffs have not cited any provisions in the contract between Freedom and the
3 Plaintiffs setting forth the obligations Freedom allegedly breached.
4 • The FCRA contains an “absolute immunity provision” which bars and preempts
state law claims against “furnishers of information” for allegedly providing
5 inaccurate information to consumer credit reporting agencies. See Roybal v.
Equifax, 405 F. Supp. 2d 1177, 1181-82 (E.D. Cal. 2005) (The “FCRA precludes
6
all state statutory or common law causes of action that would impose any
7 ‘requirement or prohibition’ on the furnishers of credit.[] Because Plaintiffs’ State
Claims are based on alleged injury arising purely from the reporting of credit
8 information by a furnisher of credit, they are completely preempted.”). . . . Like in
Desser, Plaintiffs’ negligence claim involves alleged actions Freedom took in
9 furnishing allegedly inaccurate credit information to the CRAs, the precise conduct
governed by the FCRA. Therefore, any potential causes of action related to this
10
alleged conduct are solely limited to claims and remedies provided by the FCRA.
11
• Plaintiffs’ SAC merely contains a conclusory declaration that Freedom
12 “committed acts of unfair competition” without providing any specific factual
allegations. There are simply no facts to even attempt to determine the root of
13
Plaintiffs’ allegations, as they do not allege any specific unlawful, unfair, or
fraudulent acts taken by Freedom in violation of the statute.
14
15 • Because there is no independent cause of action for unjust enrichment, Plaintiffs’
claim must be dismissed. Sears v. Rocket Mortg., LLC, No. 2:25-cv-0409 TLN AC
16 PS, 2025 U.S. Dist. LEXIS 120806, at *14-15 (E.D. Cal. June 24, 2025)
(dismissing claim because California does not recognize an independent cause of
17
action). For this reason alone, the claim should be dismissed. Even if the Court
18 reads the claim generously as a “quasi-contract” claim, it still fails. California law
is clear that “an action based on an implied-in-fact or quasi-contract cannot lie
19 where there exists between the parties a valid express contract covering the same
subject matter.” Lance Camper Manufacturing Corp. v. Republic Indemnity Co.,
20 44 Cal. App. 4th 194, 203 (Cal. Ct. App. 1996).
21
• Plaintiffs have only alleged Freedom’s reporting of them as 120 days late was
22 inaccurate. DN 83, 8:13-20. They have not alleged a single other element of a
FCRA claim, including that they sent a dispute to the CRAs, that the CRAs
23 notified Freedom of the dispute, or that Freedom failed to investigate the dispute. .
. . Plaintiffs fail to allege a single element of an FDCPA claim.
24
25 • [N]othing in the SAC indicates Freedom’s alleged violation resulted in anything
that “affected the borrower’s loan obligations, disrupted the borrower’s loan
26 modification process, or otherwise harmed the borrower.” Therefore, Plaintiffs did
not allege a material violation of section 2923.55, as required by the statute. . . .
27 Similarly, in this case, Plaintiffs do not allege anything beyond the mere statement
that “Defendants did not provide the Plaintiffs with Single Point of Contact.” DN
28
1 83, 9: 25-26. Clearly, this does not establish “the alleged violation affected a
plaintiff’s loan obligations or the modification process.” . . . Similar to the analysis
2
of Plaintiffs’ Section 2923.7 claim, the SAC does not contain any allegations that
3 Freedom’s conduct “affected the borrower’s loan obligations, disrupted the
borrower's loan-modification process, or otherwise harmed the borrower,” as
4 required to sufficiently plead a material violation of 2923.6.
5 (ECF No. 85, pp. 12-22).
Plaintiffs failed to timely oppose Defendants’ arguments or follow the Court’s order
6
regarding the filing of an opposition brief. Thus, the Court also considers whether dismissal is
7
warranted for a failure to comply with a local rule, which likewise apply to dismissals for failure
8
to comply with a court order.
9
“The public’s interest in expeditious resolution of litigation always favors dismissal.”
10
Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California
11
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this first factor weighs in favor of
12
dismissal.
13
As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to
14
determine whether the delay in a particular case interferes with docket management and the
15
public interest.” Id. Here, Plaintiffs had two opportunities to timely respond to the motion to
16 dismiss: (1) the fourteen-day period provided under Local Rule 230(c); and (2) the extended
17 period of time that the Court sua sponte provided to Plaintiffs. However, Plaintiffs failed, without
18 explanation, to timely file their oppositions. Plaintiff’s failure to follow court orders and respond
19 to dispositive arguments is interfering with the Court’s ability to manage the docket. See Hill v.
20 Escobar, No. 2:21-CV-02118-DAD-JDP (PC), 2024 WL 170132, at *2 (E.D. Cal. Jan. 16, 2024),
21 report and recommendation adopted, 2024 WL 1858217 (E.D. Cal. Apr. 26, 2024)
22 (recommending dismissal of case where a plaintiff, after multiple opportunities, failed to provide
23 an address for defendants). Therefore, the second factor weighs in favor of dismissal.
Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in
24
and of itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 991).
25
However, “delay inherently increases the risk that witnesses’ memories will fade and evidence
26
will become stale,” id. at 643, and it is Plaintiffs’ failure to timely respond to the motion to
27
dismiss and comply with court orders that has delayed this case.
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1 Once again, even considering Plaintiffs’ untimely opposition, they have still failed to
2 oppose Defendant’s argument that the case is subject to dismissal because it is duplicative of a
3 pending case. Given that Freedom’s claims will still proceed in another case, subject to the
4 motion to dismiss in that case, there is little risk of prejudice to Plaintiffs in dismissal of this case.
5 As for the availability of lesser sanctions, given that Plaintiffs have failed to timely
respond to the motion to dismiss, despite an extension to do so and being warned of possible
6
dismissal, there is little available to the Court that would constitute a satisfactory lesser sanction
7
while protecting the Court from further unnecessary expenditure of its scarce resources.
8
Moreover, given the pendency of similar claims in a related proceeding that are currently subject
9
to a motion to dismiss, the Court is recommending dismissal without prejudice. Kaye v. Superior
10
Ct. of California, No. SA CV 18-01520 JLS (AFM), 2018 WL 4372675, at *1 (C.D. Cal. Sept.
11
11, 2018) (noting that “dismissal without prejudice is the most efficient way to address the
12
problem of a duplicative case”). It has thus not recommended the harshest possible sanction
13
available.
14
Finally, while public policy favors disposition on the merits, the Court is recommending
15
dismissal of these claims without prejudice, so that Plaintiffs may continue to litigate their claims
16 in the Related Case. Accordingly, this factor is neutral.
17 In short, the balance of the factors weighs in favor of granting Freedom’s motion to
18 dismiss.
19 B. Nestor
20 The Court also recommends dismissing Plaintiffs’ claims against Nestor without
21 prejudice.
22 As the second amended complaint included Nestor for the first time, and those claims
23 have not yet been screened by this Court and allowed to proceed, Nestor has not been served with
the second amended complaint or responded to that complaint.
24
The Court has reviewed Plaintiffs’ claims against Nestor pursuant to its authority under 28
25
U.S.C. § 1915(e)(2)(B)(ii) and finds that they do not assert cognizable claims against it.
26
The following are the only allegations against Nestor in Plaintiffs’ second amended
27
complaint:
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1 Defendants Nestor Solutions LLC an entity formed in the State of Florida filing
date June 8, 2022.
2
3 With Defendants Nestor Solutions working alongside Defendants without
confirming or questioning documentation, they are just as culpable.
4
Alternatively, if the note and deed of trust was validly and properly assigned to the
5 Defendants, Nestor Solutions (Defendants) did not act in good faith and did not
deal fairly with Plaintiffs in connection with the filing of the Notice of Default.
6
(ECF No. 83, pp. 2, 4, 7).
7
The second amended complaint also includes citations to documents that supposedly
8
concern Nestor, but no documents are attached to the complaint. (ECF No. 83, at p. 3) (“The
9
Defendants’ Notice of Default claimed payments due from May 1, 2022 (See exhibit E- Notice of
10
Default filed by Nestors Solutions-in violations of state and federal regulations).”); and p. 4
11
(“(Exhibit I-Email to Nestor Solutions, Barbara Johnson).”).
12
These allegations are not sufficient to state any cognizable claim against Nestor. They do
13 not identify what Nestor is alleged to have done and why those actions or inactions violate
14 Nestor’s relevant legal obligations. They do not include any statement of claim showing that
15 Plaintiffs are entitled to relief. Fed. R. Civ. P. 8(a)(2).
16 Additionally, to the extent the second amended complaint alleges that Nestor is “just as
17 culpable” as Freedom, Freedom’s arguments for dismissal, which remain to be litigated in the
18 Related Case, likewise apply to Nestor.
19 The Court also does not recommend giving Plaintiffs leave to file a third amended
20 complaint in this case to amend their claims against Nestor. This case has been pending since
October 10, 2023 and Plaintiffs have already amended their complaint twice. Notably, Plaintiffs
21
did not identify the new claims against Nestor in the stipulation to amend their complaint, and
22
they have not been given leave to add such claims to this case. The Court has twice screened
23
Plaintiffs’ complaints, and provided legal standards related to Plaintiffs’ claims.
24
Accordingly, pursuant to the Court’s screening authority, the Court will also recommend
25
dismissing all claims against Nestor without prejudice.
26
VI. CONCLUSION, ORDER, AND RECOMMENDATIONS
27
For the reasons given above, the Court concludes that dismissal of this entire action,
28
1 || without prejudice, is appropriate.
2 Accordingly, IT IS ORDERED that the Clerk of Court shall add Nestor Solutions LLC as
3 || a defendant on the docket.
4 Further, the Court RECOMMENDS that:
5 1. Defendant Freedom Mortgage Corporation’s motion to dismiss be granted. (ECF
6 No. 85).
7 2. The claims against Defendant Nestor Solutions LLC be dismissed for failure to
g state a claim.
9 3. This entire action be dismissed without prejudice.
4. The Clerk of Court be directed to close this case.
These findings and recommendations will be submitted to the United States District Court
Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within thirty
2 (30) days after being served with a copy of these findings and recommendations, any party may
13 file written objections with the Court and serve a copy on all parties. Any objections shall be
limited to no more than fifteen (15) pages, including exhibits. Such a document should be
15 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the
16 objections shall be served and filed within fourteen (14) days after service of the objections. The
17 parties are advised that failure to file objections within the specified time may result in the waiver
18 || of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.
19 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
20
> IT IS SO ORDERED.
Dated: _ January 9, 2026 [spe hey □□
3 UNITED STATES MAGISTRATE JUDGE
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