Pergamo et al v. Homecomings Financial LLC et al

Filing 16

ORDER DISMISSING CASE WITH PREJUDICE. Signed by Judge Charles R. Breyer on 5/01/09. (Attachments: # 1 Certificate of Service)(be, COURT STAFF) (Filed on 5/1/2009)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

ANTONIO PERGAMO, et al., Plaintiffs, v. HOMECOMINGS FINANCIAL, et al., Defendants. /

No. C 08-04737 CRB ORDER DISMISSING CASE WITH PREJUDICE

Plaintiffs, representing themselves, filed this contract/fraud action in connection with a home loan plaintiffs received from defendants and the apparent foreclosure of their home. The "Factual Background" of the original Complaint stated in its entirety: On August 21, 2006, HOMECOMING FINANCIAL LLC, through their agents loan officers (Does 1 through 10) did verbally represent to the plaintiffs that they were approved for a loan in the first amount of $701,120.79 in United States to profit the defendants, by charging excessive interest and did so collect excessive interest payments from the plaintiff and less than 0%-0% credited to the principle [sic] they claimed is at risk. Complaint at p. 2. Plaintiffs asked the Court to empanel a Grand Jury to investigate the defendants, to arrest defendants, and to enjoin the sale of plaintiffs' property. They made claims for breach of contract/covenant of good faith and fair dealing (First Cause of Action); fraud and racketeering (Second Cause of Action); ursury and racketeering (Third Cause of Action); and intentional infliction of emotional distress (Fourth Cause of Action).

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The Court also noted that while the jurisdiction section of the Complaint recited that the action arises under various federal statutes, the Complaint in fact made only state law claims (breach of contract, emotional distress, fraud); thus, this Court did not have federal question jurisdiction of the complaint. See 28 U.S.C. § 1331. The Court also explained that it did not have diversity jurisdiction as the Complaint recited that at least one of the defendants is a citizen of California, as are plaintiffs. Complaint at p. 2; 28 U.S.C. § 1332. Accordingly, the Court dismissed plaintiffs' Complaint with leave to amend. In particular, the Court ordered plaintiffs to file an amended complaint of which this Court has jurisdiction and which clearly sets forth the facts giving rise to plaintiffs' claims. The Court also suggested that plaintiffs seek assistance from the Legal Help Center, located at the federal courthouse, 450 Golden Gate Avenue, San Francisco, on the 15th Floor, room 2796. Now pending before the Court is plaintiffs' First Amended Complaint. It is nearly identical to the original complaint and the Court still lacks federal question or diversity jurisdiction. It still includes only state law causes of action and plaintiffs are still not diverse from all of the defendants. In addition, it does not state a basis for relief as the only additional factual allegation in the Amended Complaint is that plaintiffs' had a second loan in the amount of $170,000 in addition to the first loan. Accordingly, as plaintiffs' amendment failed to cure the defects in the Complaint, and further leave to amend would be futile, this action is DISMISSED WITH PREJUDICE. IT IS SO ORDERED. Dated: May 01, 2009

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

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