Jewell v. Countrywide Home Loans Incorporated et al

Filing 10

ORDER that Plaintiff shall file a third amended complaint, properly alleging federal subject matter jurisdiction by 6/27/11, or this case will be dismissed without prejudice. It is further ordered that the Court will not consider the request for injunctive relief (Doc. 9 ) until Plaintiff gives notice to Defendants. See Fed. R. Civ. Pro. 65.. Signed by Judge James A Teilborg on 06/02/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Countrywide Home Loans, Inc.; BAC)
Home Loan Servicing LP; Mortgage)
Electronic Registration Services, Inc.;)
Recontrust Company, NA; Bank of New)
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York Mellon,
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Defendants.
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Renee Jewell,

No. CV 11-8042-PCT-JAT
ORDER

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On April 6, 2011, the Court issued the following Order:

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“Inquiring whether the court has jurisdiction is a federal judge’s first duty in
every case.” Belleville Catering Co. v. Champaign Market Place, L.L.C., 350
F.3d 691, 693 (7th Cir. 2003). ...
Plaintiff has failed to allege a proper basis for federal subject matter
jurisdiction. However, on the face of the complaint, it appears the Court may
have jurisdiction based on diversity of citizenship. See 28 U.S.C. § 1332.
However, Plaintiff has not pled sufficient facts for this Court to determine
whether diversity jurisdiction exists.
Specifically, Plaintiff must plead her own state citizenship, the citizenship of
any corporations (Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192; - - - U.S. - - (2010)), the citizenship of any partnerships (Carden v. Arkoma Associates, 494
U.S. 185, 195-96 (1990)), and the amount in controversy
(28 U.S.C. § 1332(a)(1)). Thus,
IT IS ORDERED that by May 4, 2011, Plaintiff shall file an amended
complaint properly alleging federal subject matter jurisdiction or this case will
be dismissed without prejudice.

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Doc. 5.
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On April 27, 2011, the Court issued the following Order:

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On April 19, 2011, Plaintiff filed an amended complaint and alleged
diversity jurisdiction. Further, Plaintiff alleged a citizenship for all of the
parties. However, Plaintiff failed to make a complete allegation with respect
to BAC Home Loan Servicing LP. Because BAC Home Loan Servicing LP
is a limited partnership, Plaintiff must allege the citizenship of each partner,
which Plaintiff failed to do. Therefore,
IT IS ORDERED that by May 20, 2011, Plaintiff shall file a supplement
to her amended complaint alleging the citizenship of each member of BAC
Home Loan Servicing LP, or this case will be dismissed, without prejudice, for
lack of federal subject matter jurisdiction.

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Doc. 6.
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Plaintiff timely filed a second amended complaint. Plaintiff made two jurisdictional
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allegations regarding BAC Home Loan Servicing LP. First, Plaintiff stated, “Defendant
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BAC Home Loan Servicing, LP[’s], ... address is 400 Countrywide Way SV-35, Simi Valley,
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Ca 93065.” Doc. 8 at 2. Second, Plaintiff stated, “For diversity jurisdiction purposes, BAC
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Home Loans Servicing LP is a subsidiary of ‘BAC’ whose designated home office is in
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California. BAC Home Loans Servicing LP is, on information and belief, a citizen of
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California.” Doc. 8 at 3.
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In making this jurisdictional allegation, Plaintiff appears to believe that a subsidiary
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takes on the citizenship of its parent. The law is that the citizenship of a partnership is
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determined by the citizenship of its members. Carden v. Arkoma Associates, 494 U.S. 185,
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195-96 (1990). However, on this record, the Court cannot determine whether Plaintiff is
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attempting to allege that “BAC” is the sole partner in BAC Home Loans Servicing LP. Thus,
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the citizenship of “BAC” would be the citizenship of BAC Home Loans Servicing LP. Thus,
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because the record is ambiguous regarding Plaintiff’s jurisdictional allegation, the Court will
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give Plaintiff a further opportunity to amend to allege federal subject matter jurisdiction.
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On May 26, 2011, Plaintiff filed a motion for injunctive relief seeking to stop
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Plaintiff’s eviction from property located at 1155 Aveinda De La Golandorina, Bullhead
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City, Arizona 86442. Plaintiff states that he has been given until April 1, 2011 to vacate the
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property. Doc. 9 at 3. Obviously this deadline has already passed. The Court has reviewed
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the motion and does not find any basis for considering the request without notice to
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Defendants. Therefore, Plaintiff must give notice to Defendants and file proof with the Court

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of how and when notice was given before the Court will consider the merits of the request

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for injunctive relief.

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Based on the foregoing,

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IT IS ORDERED that Plaintiff shall file a third amended complaint, properly

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alleging federal subject matter jurisdiction by June 27, 2011, or this case will be dismissed

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without prejudice.

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IT IS FURTHER ORDERED that the Court will not consider the request for

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injunctive relief (Doc. 9) until Plaintiff gives notice to Defendants. See Fed. R. Civ. Pro. 65.

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DATED this 2nd day of June, 2011.

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