Kerner et al v. Deutsche Bank National Trust Company
ORDER that Plaintiffs' motions for reconsideration (Docs. 6 , 7 ) are denied. No further motions shall be filed. Signed by Judge David G Campbell on 07/29/11.(ESL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kathy Lee Kerner; and Anthony J. Kuc Jr.,
Deutsche Bank National Trust Company, as
Trustee of the IndyMac INDX Mortgage
Trust 2007-FLX3, Mortgage Pass-Through
Certificates, Series 2007-FLX3 Under the
Pooling and Servicing Agreement Dated
April 1, 2007,
In an order dated July 22, 2011 (Doc. 5), the Court dismissed Plaintiffs’ complaint
(Doc. 1) for lack of subject matter jurisdiction and remanded a related action (Doc. 4 at
7-15) to state court. Plaintiffs have filed identical documents entitled “objection and
demand” (Docs. 6, 7), which the Court will construe as motions for reconsideration. For
reasons that follow, the motions will be denied.
Motions for reconsideration are disfavored and should be granted only in rare
circumstances. Such a motion is denied “absent a showing of manifest error or a showing
of new facts or legal authority that could not have been brought to [the Court’s] attention
earlier with reasonable diligence.” LRCiv 7.2(g)(1); see Carroll v. Nakatani, 342 F.3d
934, 945 (9th Cir. 2003). Mere disagreement with an order is an insufficient basis for
reconsideration. See Ross v. Arpaio, No. CV 05-4177-PHX-MHM, 2008 WL 1776502,
at *2 (D. Ariz. Apr. 15, 2008).
Plaintiffs assert that they were not notified of the motion to remand (Doc. 4), but a
review of the Court’s docket shows that the motion was mailed to Plaintiffs at their
addresses of record on June 27, 2011. In any event, the Court clearly lacks subject matter
jurisdiction over the wrongful foreclosure complaint and the related forcible entry and
detainer action. See Doc. 5.
Plaintiffs note, correctly, that pro se litigants generally should be granted leave
to amend and provided an explanation of the complaint’s deficiencies.
previously explained why the wrongful foreclosure complaint fails to establish federal
jurisdiction. Doc. 5. The Court finds leave to amend to be futile. Plaintiffs, of course,
may seek to assert their claim for wrongful foreclosure as a counterclaim in the state
Apr. 18, 2011).
See Deutsche Bank v. Kerner, No. CV2011-00617 (Ariz. Super. Ct.
IT IS ORDERED:
Plaintiffs’ motions for reconsideration (Docs. 6, 7) are denied.
No further motions shall be filed.
Dated this 29th day of July, 2011.
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