Khan v. U.S. Bank National Association et al

Filing 25

FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 7/7/2014 RECOMMENDING that this action be dismissed for lack of subject matter jurisdiction; REFERRING this matter to Judge Kimberly J. Mueller; ORDERING that any objections be filed within fourteen days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KHALID KHAN,

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No. 2:13-cv-2596 KJM CKD PS
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

U. S. BANK NATIONAL
ASSOCIATION, et al.,
Defendants.

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By order filed June 5, 2014, this matter was reopened and referred to the undersigned for

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further proceedings. This matter is proceeding on the first amended complaint filed on February

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10, 2014. In the amended complaint, plaintiff complains about an allegedly wrongful foreclosure.

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Plaintiff alleges only state law claims. The amended complaint does not allege a basis for subject

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matter jurisdiction in this court. The federal courts are courts of limited jurisdiction. In the

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absence of a basis for federal jurisdiction, plaintiff’s claims cannot proceed in this venue.

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Because plaintiff is proceeding on only state law claims, it appears that the only proper

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basis for jurisdiction would sound in diversity. Named in the amended complaint are three

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defendants. Although it appears from the articles of incorporation filed on June 12, 2014 (ECF

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No. 21) that defendant U.S. Bank National Association may be diverse, the amended complaint is

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devoid of allegations regarding the citizenship of any of the defendants. In order to properly
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invoke subject matter jurisdiction under 28 U.S.C. § 1332, the citizenship of all defendants must

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be diverse from the citizenship of plaintiff and the matter in controversy must exceed the sum or

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value of $75,000. Plaintiff pleads neither requirement. Because no basis for federal subject

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matter jurisdiction was evident in the amended complaint, plaintiff was ordered to show cause

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why this action should not be dismissed and cautioned that failure to allege a proper basis for

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subject matter jurisdiction would result in a recommendation that the action be dismissed.

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On July 1, 2014, plaintiff filed a response to the order to show cause in which he asserted

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that defendant S.A. Challenger, Inc. is a Minnesota Corporation. Plaintiff did not address the

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citizenship of the remaining named defendant, T.D. Service Company. Without leave of court,

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and in violation of Federal Rule of Civil Procedure 15, plaintiff filed a second amended

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complaint. Although the caption of the second amended complaint omits defendant T.D. Service

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Company, the second amended complaint refers to this entity as a defendant and alleges it is a co-

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conspirator with the remaining defendants. The court takes judicial notice of the records of the

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California Secretary of State, which indicate T.D. Service Company, entity number C0477530, is

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registered as an active California corporation, with the entity address the same as listed in the

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exhibits to plaintiff’s original complaint. See ECF No. 1 at p. 21. It is apparent from the

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allegations of the second amended complaint that plaintiff has simply omitted the non-diverse

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defendant from the caption as a ploy to invoke diversity jurisdiction but intends to proceed on

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claims against this non-diverse defendant.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of
subject matter jurisdiction.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: July 7, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 khan-usbank2596.3.nosmj.57

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