Pergamo et al v. Homecomings Financial LLC et al

Filing 5

ORDER denying temporary restraining order and dismissing case with leave to amend. Amended complaint must be filed by December 5, 2008. Signed by Judge Charles R. Breyer on 10/31/2008. (crblc1, COURT STAFF) (Filed on 10/31/2008) (Additional attachment(s) added on 11/3/2008: # 1 Certificate of Service) (be, COURT STAFF).

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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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ANTONIO PERGAMO, et al., Plaintiffs, v. HOMECOMINGS, A GMAC COMPANY, et al., Defendants. / No. C 08-04737 CRB ORDER DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER AND DISMISSING COMPLAINT WITH LEAVE TO AMEND Plaintiffs, representing themselves, filed this contract/fraud action in connection with a home loan plaintiffs received from defendants. The "Factual Background" of the Complaint states 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 ask the Court to empanel a Grand Jury to investigate the defendants, to arrest defendants, and to enjoin the sale of plaintiffs' property. They make 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). 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 Plaintiffs have also filed an ex parte request for a temporary restraining order; plaintiffs seek an order preventing plaintiffs from being moved out of their home. Plaintiffs' motion is DENIED. While the jurisdiction section of the Complaint recites that the action arises under various federal statutes, the Complaint in fact makes only state law claims (breach of contract, emotional distress, fraud); thus, this Court does not have federal jurisdiction of the complaint. See 28 U.S.C. 1331. Nor does the Court have diversity jurisdiction as the Complaint recites that at least one of the defendants is a citizen of California, as are plaintiffs. Complaint at p. 2; 28 U.S.C. 1332. Even if the Court had jurisdiction of the Complaint, the Court would deny the request for a temporary restraining order because plaintiffs have not presented evidence sufficient to justify the entry of such order and have not filed a proof of service on defendants. Accordingly, plaintiffs' complaint is DISMISSED with leave to amend. In particular, on or before December 5, 2008 plaintiffs shall file an amended complaint of which this Court has jurisdiction and which clearly sets forth the facts giving rise to plaintiffs' claims. Plaintiffs are warned that their failure to comply with this deadline may result in dismissal of their action with prejudice. The Court suggests 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. Plaintiffs must visit the Help Center to make an appointment to meet with a Help Center attorney. IT IS SO ORDERED. Dated: October 31, 2008 CHARLES R. BREYER UNITED STATES DISTRICT JUDGE G:\CRBALL\2008\4737\orderrecomplaint.wpd 2

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