Udo v. Bank of America, N.A.

Background

Etop Udo and Legal Task Help, LLC sued Bank of America, N.A.; U.S. Bank; Wells Fargo Bank, N.A.; and Bank of the West. The court stated that the complaint was word-for-word identical to Udo’s first amended complaint in a prior related proceeding, except for adding Legal Task Help, LLC as a plaintiff and correcting a statutory citation.

In that earlier proceeding, Judge White dismissed the case with prejudice after concluding that allowing another amendment would be futile. Judgment was entered on December 12, 2023. Udo appealed, but the Ninth Circuit dismissed the appeal for lack of jurisdiction because it was filed too late, leaving the judgment undisturbed. The same attorney represented Udo in the earlier proceeding and represented both plaintiffs in this case.

Failure to Serve Process

Federal Rule of Civil Procedure 4(m) generally requires a defendant to be served within 90 days after a complaint is filed. The court stated that this case was filed on March 4, 2024, making June 3, 2024 the service deadline because the ninetieth day fell on a Sunday. The docket showed no indication that any defendant had been served. The court therefore ordered the plaintiffs to explain why the case should not be dismissed for failure to serve process within the allowed time.

Claim Preclusion

The court also ordered the plaintiffs to explain why their claims should not be barred by res judicata, also called claim preclusion. This doctrine can prevent a party from bringing the same claims again when there has been a final judgment on the merits and the parties or their legal interests are sufficiently connected.

The court found that the current complaint asserted the same claims based on the same facts as the earlier case. It also concluded that the earlier dismissal with prejudice appeared to qualify as a final judgment on the merits. Udo was a party in both proceedings. Although Legal Task Help, LLC was a new plaintiff, the complaint treated Udo and the LLC jointly as “Plaintiff” and/or “Udo” and otherwise barely discussed the LLC. The court stated that the complaint appeared to assert the same interests for both plaintiffs.

The court recognized, however, that the Ninth Circuit had cautioned against dismissing a new plaintiff’s claims based only on assumptions about the relationship between that plaintiff and a party to the earlier case. The court therefore directed the plaintiffs to provide evidence if Legal Task Help, LLC was not legally connected to Udo or was not adequately represented in the earlier litigation.

Disposition

The court did not dismiss the case in this order. Magistrate Judge J. Cisneros ordered the plaintiffs to file a response by August 9, 2024 explaining why the case should not be dismissed for failure to serve process and claim preclusion. If they did not respond, or if their response did not resolve the identified issues, the case would be reassigned to a district judge with a recommendation that it be dismissed.