United States District Court, D. Nebraska
THE MEHNER FAMILY TRUST, RAYMOND H. MEHNER, MARK A. MEHNER, ANDREA L. MEHNER, ANTHONY Q. MEHNER, AND DANIELLE N. MEHNER, Plaintiffs,
U.S. BANK NATIONAL ASSOCIATION, KOZENY & MCCUBBIN, L.C., WELLS FARGO BANK, N.A., AND REO ASSET MANAGEMENT COMPANY LLC, Defendants.
F. Rossiter, Jr. United States District Judge.
matter is before the Court on several motions (Filing Nos.
42, 56, and 59) and requests (Filing Nos. 41, 51, and 64)
filed by the plaintiffs and related to the motions to dismiss
and motions for summary judgment currently pending before the
Court. This is an action for wrongful foreclosure, quiet
title, slander to title, and alleged violations of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692.
Plaintiffs' Motion to Strike Extraneous Material (Filing
their thirty-page Amended Complaint, the plaintiffs recount a
seven-year detailed history of a mortgage loan, subsequent
assignments of that loan, a federal forfeiture action, four
state-court cases, a bankruptcy action and adversary
proceeding, and an eventual foreclosure and attempted
eviction. Defendants U.S. Bank National Association and Wells
Fargo Bank, N.A. (collectively, “Banks”) and
Kozeny & McCubbin, L.C., have moved to dismiss for
failure to state a claim. See Fed. R. Civ. P.
12(b)(6). In support of their motions, the Banks submitted
various pleadings, orders, briefs, and transcripts of
proceedings from the state-court actions, as well as
documents filed with the Douglas County Register of Deeds
that pertain to the property that is the subject of this
plaintiffs moved to strike those documents, contending the
documents cannot be considered on a motion to dismiss. They
argue the Court's review is limited to the face of the
Amended Complaint, but they do not dispute the authenticity
of the documents and concede some of the documents are
referred to in their Amended Complaint. In response, the
defendants argue (1) the documents are necessarily embraced
in the Amended Complaint and (2) the Court can take judicial
notice of the documents because they are public records.
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court generally must ignore materials
outside the pleadings, but it may consider some materials
that are part of the public record or do not contradict the
complaint, as well as materials that are necessarily embraced
by the pleadings. Miller v. Redwood Toxicology Lab.,
Inc., 688 F.3d 928, 931 (8th Cir. 2012). In reviewing a
motion to dismiss, the Court is “not precluded in [its]
review of the complaint from taking notice of items in the
public record.” Levy v. Ohl, 477 F.3d 988, 991
(8th Cir. 2007). In the Eighth Circuit, “Rule 12(b)(6)
motions are not automatically converted into motions for
summary judgment simply because one party submits additional
matters in support of or opposition to the motion . . . .
Some materials that are part of the public record or do not
contradict the complaint may be considered by a court in
deciding a Rule 12(b)(6) motion.” Id.
(quoting Nixon v. Coeur D'Alene Tribe, 164 F.3d
1102, 1107 (8th Cir. 1999)); see also Miller, 688
F.3d at 931 n.3 (noting that courts may consider matters
incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders,
items appearing in the record of the case, and exhibits
attached to the complaint whose authenticity is unquestioned,
without converting the motion into one for summary judgment).
Court records are public records. See Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589 (1978).
the Federal Rules of Evidence, the Court “may
judicially notice a fact that is not subject to reasonable
dispute.” Fed.R.Evid. 201(b). A fact is not subject to
reasonable dispute if it is “generally known within the
trial court's territorial jurisdiction” or it
“can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.”
Id.; accord Lustgraaf v. Behrens, 619 F.3d 867, 885
(8th Cir. 2010) (“Judicial notice of a fact is only to
be taken when that fact is not subject to reasonable
dispute.”) The Court “may take judicial notice on
its own” and “must take judicial notice if a
party requests it and the court is supplied with the
necessary information.” Fed.R.Evid. 201(c).
routinely take judicial notice of documents filed in other
courts “not for the truth of the matters asserted in
the other litigation, but rather to establish the fact of
such litigation and related filings.” Kramer v.
Time Warner, 937 F.2d 767, 774 (2d Cir. 1991); see
Insulate SB, Inc. v. Advanced Finishing Sys., Inc., 797
F.3d 538, 543 n.4 (8th Cir. 2015); Kushner v. Beverly
Enters., 317 F.3d 820, 832 (8th Cir. 2003); Lee v.
City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001)
(“[W]hen a court takes judicial notice of another
court's opinion, it may do so not for the truth of the
facts recited therein, but for the existence of the opinion,
which is not subject to reasonable dispute over its
authenticity.”); C. Wright and K. Graham, 21B Federal
Practice & Procedure § 5106.4 (discussing the
distinction between taking judicial notice of the
“existence” of a statement of fact in court
records and taking notice of the “truth” of that
Court finds the Plaintiffs' Motion to Strike should be
denied. The Plaintiffs specifically refer to several
state-court actions in their Amended Complaint and
accordingly, the state-court filings are necessarily embraced
within the allegations of the Amended Complaint. Also, the
submitted Register of Deeds documents are public records.
The Banks' and REO Asset Management Company, LLC's
(“REO”) Motions for Leave to File Further
Evidence (Filing Nos. 56 and 59)
these motions, defendants the Banks and REO Asset Management
Company, LLC. seek leave to file as evidence in this case a
recent order entered in one of the state-court cases (Filing
Nos. 57-2 and 60-1, Mehner Family Trust, et al. v. Wells
Fargo Bank, et al., Docket CI14-1901, Order dated Dec.
9, 2016). The state-court action is referred to and embraced
in the Amended Complaint and the order is a public record.
The Court finds the motions should be granted and the Court
will take judicial notice of the order.
The Plaintiffs' Requests to Take Judicial Notice (Filing
Nos. 41, 51, and 64)
Plaintiffs request the Court take judicial notice of certain
documents submitted in opposition to the Banks' Motion to
Dismiss (Filing Nos. 41, 51) and in support of
plaintiffs' Motion for Summary Judgment (Filing No. 64).
This Court can take judicial notice of its own records and
public records. All the records in Filing Nos. 41 and 51 are
public records or records of the Court. All the records in
Filing No. 64, except for documents identified in the request
for judicial notice as numbers 2, 4, 7, 8, and 10, are public
records or records of the Court. Items 2, 4, 7, 8, and
are various communications and a title report; none of these
items comes from a source whose authenticity cannot be
questioned, nor are the items authenticated. For the reasons
stated above, the Court finds the motions should be granted
in part and the Court will take judicial notice of ...