Schieberl v. Avelo Mortgage, LLC et al

Filing 89

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND. re 75 , 80 . Denying plaintiff's notice and demand for enforcement of Nihil Dicit Judgment re 85 . (SI, COURT STAFF) (Filed on 4/27/2009) (Additional attachment(s) added on 4/29/2009: # 1 cs) (ys, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DISCUSSION By order filed December 3, 2008, the Court granted defendants' motions to dismiss the complaint, and granted plaintiff "one final opportunity" to amend the complaint. Docket No. 35. The Court's December 3, 2008 order explained in great detail why plaintiff's claims were deficient, and provided guidance to plaintiff in the event she chose to amend the complaint. On December 19, 2008, plaintiff filed a 78 page second amended complaint. Docket No. 40. The second amended complaint suffered from and amplified the deficiencies contained in the previous complaints. By order filed March v. AVELO MORTGAGE LLC, et al., Defendants. / JAN SCHIEBERL, Plaintiff, No. C 08-3321 SI ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Motions by defendants Robert Jackson and Citimortgage to dismiss the complaint are scheduled for a hearing on May 1, 2009. Pursuant to Civil Local Rule 7-1(b), the Court determines that the matters are appropriate for resolution without oral argument, and VACATES the hearing. For the reasons set forth below, the Court GRANTS defendants' motions to dismiss the complaint without leave to amend.

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

30, 2009, the Court granted renewed motions to dismiss brought by numerous defendants1 ­ not including defendants Jackson or Citimortgage ­ and dismissed the amended complaint without leave to amend as to those defendants. Docket No. 86. Now before the Court are motions to dismiss the second amended complaint filed by defendants Robert Jackson and Citimortgage. Plaintiff has not filed oppositions to the motions. Instead, she has filed a "Notice and Demand for Enforcement of Nihil Dicit Judgment" contending that defendants have not filed a timely answer and that default judgment should be entered. All of the reasons set forth in the March 30, 2009 order for dismissing the amended complaint as to the other defendants apply with equal force to defendants Jackson and Citimortgage. Plaintiff has failed to state a claim upon which relief can be granted, and any further leave to amend would be futile. Accordingly, the Court GRANTS defendants' motions without leave to amend.

CONCLUSION For the foregoing reasons, the Court hereby GRANTS defendants' motions to dismiss. Docket Nos. 75 & 80. The Court DENIES plaintiff's "Notice and Demand for Enforcement of Nihil Dicit Judgment." Docket No. 85. This case is now closed.

IT IS SO ORDERED.

Dated: April 27, 2009

SUSAN ILLSTON United States District Judge

Avelo Mortgage, LLC, Northwest Trustee Services, the Superior Court of California, Judge William Kolin, Ken Torre, Contra Costa County, and Warren Rupf, Sheriff-Coroner of Contra Costa County. 2

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