Rodriguez et al v. America's Servicing Company

Filing 8

ORDER DIRECTING PLAINTIFFS TO SHOW CAUSE WHY FIRST AMENDED COMPLAINT SHOULD NOT BE DISMISSED. Plaintiffs are ordered to show cause, in writing and no later than March 20, 2009, why the action should not be dismissed for lack of subject matter jurisdiction and without prejudice to plaintiffs' filing their claims in state court. Signed by Judge Maxine M. Chesney on February 26, 2009. (mmclc1, COURT STAFF) (Filed on 2/26/2009)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. AMERICA'S SERVICING COMPANY, Defendant / On January 30, 2009, the Court ordered plaintiffs to show cause, in writing and no later than February 20, 2009, why the above-titled action should not be dismissed for lack of subject matter jurisdiction, for the reason that plaintiffs' initial complaint failed to allege the place of incorporation or the principal place of business of defendant. (See Order filed January 30, 2009 ("OSC"); see also Compl. ¶ 2 (alleging defendant is "an Unknown business entity doing business in the City of Pittsburg, County of Contra Costa, State of California").) On February 20, 2009, plaintiffs responded to the Court's OSC by filing a a First Amended Complaint ("FAC"). The FAC contains contradictory allegations. In particular, plaintiffs appear to allege both that defendant is a corporation and that it is a limited partnership. (See FAC ¶ 8 // NELSON V. RODRIGUEZ, et al., Plaintiffs, No. C-09-0306 MMC ORDER DIRECTING PLAINTIFFS TO SHOW CAUSE WHY FIRST AMENDED COMPLAINT SHOULD NOT BE DISMISSED United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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(alleging defendant "is domiciled, incorporated, and registered and is operating as a limited partnership in Delaware"); id. (alleging defendant "was formed and created as a Delaware Corporation, and so, as a result, they are operating as a foreign limited partnership"). The citizenship of a partnership depends on the citizenship of each of such entity's partners. See Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990). Thus, if plaintiffs' FAC is interpreted to allege defendant is a limited partnership, the FAC is deficient as plaintiffs fail to allege therein the citizenship of the persons and/or entities who comprise said partnership. Consequently, plaintiffs' allegations concerning diversity of citizenship remain deficient. Nor does the FAC sufficiently allege a federal question. See 28 U.S.C. § 1331. The FAC asserts only two causes of action, both of which are based on state law. (See id. at 20:23-24 (alleging "First Cause of Action (Quiet Title, Abuse of Process"); id. at 43:15-16 (alleging "Second Cause of Action (Slander of Title, fraudulent conversion").) To the extent plaintiffs purport to assert additional causes of action based on references to federal statutes or the federal Constitution (see, e.g., FAC ¶ 1 (alleging "[t]he [c]omplaint is filed pursuant to Title 42, Sections 1983, 1985, and 1986"); id. at 20:10 (alleging violations titled "First and Fourteenth Amendment/ Due Process Violations"), the FAC is deficient. Specifically, plaintiffs have failed to adequately allege defendant acted "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia," see 42 U.S.C. § 1983, or that defendant and at least one other person conspired to interfere with plaintiffs' civil rights, see 42 U.S.C. § 1985, or that defendant "neglect[ed] or refuse[d]" to prevent the "wrongs . . . mentioned in section 1985," see 42 U.S.C. § 1986. Accordingly, plaintiffs are hereby ORDERED TO SHOW CAUSE, in writing and no later than March 20, 2009, why the instant action should not be dismissed for lack of subject matter jurisdiction and without prejudice to plaintiffs' filing their claims in state court. Plaintiffs may respond by filing a Second Amended Complaint. In any such Second Amended Complaint, however, if plaintiffs wish to assert any cause of action other than the 2

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two causes of action alleged in their FAC, they shall file either a motion for leave to amend or a stipulation indicating defendant has consented to such amendment. See Fed. R. Civ. P. 15(a)(2) (providing, where party has previously amended its pleading once, such party "may amend its pleading only with the opposing party's written consent or the court's leave"). IT IS SO ORDERED.

Dated: February 26, 2009

MAXINE M. CHESNEY United States District Judge

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