Park et al v. Bank of America et al

Filing 17

ORDER signed by Judge Lawrence K. Karlton on 12/20/13: 7 Motion to Dismiss is GRANTED, and the Complaint is hereby DISMISSED for lack of federal jurisdiction, with leave to amend. If plaintiffs choose to amend their Complaint, (1) they shall do so no later than thirty (30) days from the date of this order. (Kaminski, H)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JUNG MYN PARK, MIN SOOK SUH,

12
13
14
15
16

No.

CIV. S-13-1717 LKK/DAD

Plaintiffs,
v.

ORDER

BANK OF AMERICA; BANK OF
AMERICA, N.A.; BRIAN T.
MOYNIHAN, DAVID C. DARNELL;
GARY G. LYNCH; THOMAS K.
MONTAG and Does 1-XXXX, et
al.,

17
Defendants.
18
19
20

I. BACKGROUND
This is a mortgage foreclosure case.

Plaintiffs sue Bank of

21

America, and its officers, for violations of California law only.

22

Complaint (ECF No. 1).

23

federal jurisdiction, although such a statement is required by

24

Fed. R. Civ. P. 8(a)(1) (the complaint must contain “a short and

25

plain statement of the grounds for the court’s jurisdiction”).

26

The Complaint contains no statement of

Defendants have noticed a motion to dismiss for lack of

27

federal jurisdiction, and on other grounds.

28

Plaintiffs oppose the motion on the grounds that the complaint
1

ECF No. 7.

1

pleads facts showing that diversity jurisdiction exists.

2

No. 15.

3

ECF

The complaint will be dismissed with leave to amend.

The

4

court finds that the motion can be decided on the submitted

5

papers, and accordingly VACATES the January 13, 2014 hearing.

6

II.

ANALYSIS – DIVERSITY JURISDICTION

7

A.

8

One requirement for diversity jurisdiction is that the

9

Citizenship

lawsuit must be between citizens of different states.

28 U.S.C.

10

§ 1332(a)(1).

11

the plaintiffs at all, and insufficiently alleges the citizenship

12

of defendants “Bank of America aka Bank of America Home Loans”

13

(alleged to be a corporation), and Bank of America, N.A.

14

the Complaint fails to allege the required jurisdictional facts.1

15

The complaint does not allege the citizenship of

Thus

The Complaint does not adequately allege the citizenship of

16

Bank of America, N.A., since it is a citizen not only of the

17

state of its principal place of business, but also where its

18

“main office” is located.

19

303, 307 (2006) (“we hold that a national bank, for § 1348

20

purposes, is a citizen of the State in which its main office, as

21

set forth in its articles of association, is located”); Guinto v.

22

Wells Fargo Bank, 2011 WL 4738519 at *3 (E.D. Cal. 2011)

23

(Karlton, J.) (the national bank “has its principal place of

24

business in California. Accordingly, it is a citizen of

25

1

26
27

See Wachovia Bank v. Schmidt, 546 U.S.

Plaintiffs appear to have sufficiently alleged the citizenship
of the individual defendants by alleging their state of domicile.
Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001)
(“The natural person's state citizenship is … determined by her
state of domicile”).

28
2

1

California”).

2

Bank’s main office.

Plaintiffs have not alleged the location of the

3

The Complaint insufficiently alleges the citizenship of Bank

4

of America aka Bank of America Home Loans because it is a citizen

5

not only of the state where it has its principal place of

6

business, but also where it is incorporated.

7

§ 1331(c)(1).

8

is incorporated.

9
10

B.

28 U.S.C.

The Complaint does not allege where this defendant

Amount in Controversy.

Another requirement for diversity jurisdiction is that the

11

“amount in controversy” must exceed “the sum or value of $75,000,

12

exclusive of interest and costs.”

13

Plaintiffs allege that they are entitled to statutory damages of

14

$50,000, and in addition, that they are entitled to trebled

15

statutory damages of $150,000.

16

“citation” for these assertions is “923.5.”

17

not specify in which of the thirty-four or so California Codes

18

“923.5” can be found.

19

28 U.S.C. § 1332(a).

Complaint ¶ 21.

Plaintiffs’

The citation does

The court assumes that plaintiffs, who are represented by

20

counsel, are actually referring to “Cal. Civ. Code § 2923.5,”

21

which appears to address the alleged practices plaintiffs

22

challenge in the Complaint.

23

does not provide for damages ….

24

drafted to avoid bumping into federal law’ regulating home loans.

25

As a result, the sole available remedy is ‘more time’ before a

26

foreclosure sale occurs”).

27

LLP, 202 Cal. App. 4th 522, 526 (3rd Dist. 2011) (citation

28

omitted).

However, “Civil Code section 2923.5
The statute was ‘carefully

Stebley v. Litton Loan Servicing,

3

1

Scouring the California Codes for the source of plaintiffs’

2

assertion that they are entitled to $50,000 in statutory damages,

3

the court finds Cal. Civil Code § 2924.12, which provides for

4

$50,000 in statutory damages for a “material violation of Section

5

2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17.”

6

Alternatively, it provides for treble “actual damages.”

7

Assuming this is the legal basis for plaintiffs’ assertion

8

of statutory damages and trebled damages, plaintiffs appear to

9

have misinterpreted the plain language of the statute.

It does

10

not provide for treble statutory damages as plaintiffs seem to

11

believe, but rather, for treble actual damages.

12

Chase Home Finance, LLC, 213 Cal. App. 4th 872, 905 (1st

13

Dist. 2013) (“those who have lost their homes may seek treble

14

actual damages or statutory damages of $50,000, whichever is

15

greater”).

16

amount of actual damages, have alleged $50,000 as the amount in

17

controversy.

18

amount.

19
20

See Jolley v.

At best, then, plaintiffs, who have not alleged any

This is not enough to satisfy the jurisdictional

III. SUMMARY
For the reasons stated above, defendants’ motion to dismiss

21

the Complaint is GRANTED, and the Complaint is hereby DISMISSED

22

for lack of federal jurisdiction, with leave to amend.

23

plaintiffs choose to amend their Complaint, (1) they shall do so

24

no later than thirty (30) days from the date of this order,

25

(2) the amended complaint shall contain a separate, short and

26

plain statement of federal jurisdiction, and (3) the amended

27

complaint shall, in all other ways, comply with Fed. R. Civ. P. 8

28
4

If

1

and 11, and all other applicable rules.2

2

IT IS SO ORDERED.

3

DATED:

December 20, 2013.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
2

25
26
27

Plaintiffs, having filed this state law based lawsuit directly
in federal district court, should be aware that if they
successfully plead the jurisdictional amount but fail to recover
at least $75,000 in a final judgment, “the district court may
deny costs to the plaintiff and, in addition, may impose costs on
the plaintiff.” 28 U.S.C. § 1332(b).

28
5