Mora et al v. McManahan et al

Filing 5

ORDER finding as moot 2 motion for leave to proceed in forma pauperis; ORDER referring case to Judge Koh for a related case determination; REPORT AND RECOMMENDATIONS re 1 dismissal for lack of subject matter jurisdiction. Objections due by 6/3/2013. Signed by Magistrate Judge Howard R. Lloyd on 5/17/2013. (hrllc2, COURT STAFF) (Filed on 5/17/2013)

1 2 *E-FILED: May 17, 2013* 3 4 5 6 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 For the Northern District of California United States District Court 7 12 No. C13-01528 HRL BERNABE MORA; STEVEN MORA, Plaintiffs, ORDER FINDING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS 13 v. 14 15 16 17 18 RICHARD MCMANAHAN; COLDWELL BANKER; ALEX BALONI; QUALITY LOANS; LITTON; NEW CENTURY; ALL PERSONS CLAIMING LEGAL ABILITY; DOES 1-30; NEW CENTURY MORTGAGE CORPORATION; GAY DALES INC REALTORS; ROY C. GUNTER III, 19 ORDER REFERRING THIS CASE TO JUDGE KOH FOR A RELATED CASE DETERMINATION REPORT AND RECOMMENDATION RE DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION Defendants. / 20 21 Bernabe and Steven Mora filed this action, alleging that real property located at 15061 22 Meridian Road in Castroville, California was wrongfully sold at a foreclosure sale.1 They also 23 appear to take issue with a state court order issued in eviction proceedings. 24 The Moras seek leave to proceed in forma pauperis (IFP). However, only Bernabe Mora 25 submitted an affidavit as to his finances. On April 10, 2013, this court issued an order directing 26 27 28 The court’s records indicate that the alleged wrongful foreclosure of this same property has been the subject of at least four other lawsuits filed by either Bernabe Mora or Steven Mora (or both) in this court. See Case No. C10-02854 LHK (HRL) Mora v. Litton Loan Servicing, et al,; Case No. C10-02855 LHK (HRL) Mora v. State Bar of California, et al.; Case No. C11-02319 LHK (HRL) Mora v. Litton Loan Servicing, et al.; and Case No. C12-03259 LHK (HRL) Mora v. Coldwell Banker, et al. 1 1 Steven Mora to file, no later than April 24, 2013, an affidavit attesting to his finances. (Dkt. 2 No. 4). That deadline has passed, and to date, the court has received no financial affidavit from 3 him. Indeed, there has been no activity on the docket since the court issued its April 10, 2013 4 order. On the record presented, this court is unable to determine whether the Moras properly 5 may proceed without paying the filing fee necessary to pursue this action. But, in any event, 6 having reviewed the complaint, the court denies as moot the IFP application because there are 7 no allegations giving rise to federal jurisdiction. 8 This case is referred to Judge Koh for a determination whether it is related to Case No. 9 C11-02319 LHK Mora v. Litton Loan Servicing, et al. within the meaning of Civil Local Rule 3-12. The undersigned further recommends2 that this action be dismissed for lack of subject 11 For the Northern District of California United States District Court 10 12 matter jurisdiction, without prejudice to the Moras to pursue their claims in state court. Federal 13 courts have original jurisdiction over civil actions “arising under the Constitution, laws, or 14 treaties of the United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based 15 on the “well-pleaded complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v. 16 Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Here, the caption of the complaint lists state 17 law claims for quiet title, misrepresentation, unlawful and/or forcible entry, unlawful holding of 18 real property, as well for “other relief.” Although the complaint goes on to assert that this court 19 has “supplemental jurisdiction,” the pleading identifies no federal claim for relief. The 20 allegations indicate that there is no diversity jurisdiction under 28 U.S.C. § 1332. Thus, the 21 complaint fails to identify any basis for the court to exercise jurisdiction over the Moras’ 22 claims. And, without any basis for federal jurisdiction, there is no ground for the exercise of 23 supplemental jurisdiction. 24 Any party may serve and file objections to this Report and Recommendation within 25 26 27 The Moras openly announced their declination of magistrate judge jurisdiction in the caption of their complaint: “Request for District Judge Not Magistrate Judge.” 2 28 2 1 fourteen days after being served. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72. 2 Dated: May 17, 2013 3 4 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 5:13-cv-01528-HRL Notice sent by U.S. Mail on May 17, 2013 to: 2 Bernabe Mora 11305 Del Monte Court #18 Castroville, CA 95012 3 4 5 Steven Mora 11305 Del Monte Court #18 Castroville, CA 95012 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4