Hornsby v. Litton Loan Servicing et al

Filing 29

THIRD ORDER TO SHOW CAUSE Show Cause Response due by 7/22/2011.. Signed by Judge Jeffrey S. White on 6/24/11. (jjoS, COURT STAFF) (Filed on 6/24/2011)

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

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ANNETTE HORNSBY,
Plaintiff,

For the Northern District of California

United States District Court

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No. C 10-04928 JSW
THIRD ORDER TO SHOW CAUSE

v.
LITTON LOAN SERVICING, ET AL.,
Defendants.

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The Court is in receipt of Plaintiff Annette Hornsby’s motion to file a second amended

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complaint (“SAC”) and her response to this Court’s Second Order to Show Cause. A motion to file

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leave to amend is a noticed motion which must be filed in accordance with Northern District Local

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Civil Rule 7, including the requirement to notice the motion for a hearing at least thirty-five days

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after service of the motion. Moreover, upon review of Plaintiff’s proposed SAC, it appears as

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though federal subject matter jurisdiction is lacking.

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Federal courts are under a duty to raise and decide issues of subject matter jurisdiction sua

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sponte at any time it appears subject matter jurisdiction may be lacking. Fed. R. Civ. P. 12;

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Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). If the Court determines that

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subject matter jurisdiction is lacking, the Court must dismiss the case. Id.; Fed. R. Civ. P. 12(h)(3).

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Federal courts are courts of limited jurisdiction. See, e.g., Kokkonen v. Guardian Life Ins. Co. of

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Am., 511 U.S. 375, 377 (1994). Federal courts can only adjudicate cases which the Constitution or

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Congress authorize them to adjudicate: those cases involving diversity of citizenship (where the

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parties are from diverse states), or a federal question, or those cases to which the United States is a

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party. See, e.g., Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994).

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Federal courts are presumptively without jurisdiction over civil cases and the burden of establishing

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the contrary rests upon the party asserting jurisdiction. Id. at 377. The United States is not a party

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to this case. Although Plaintiff has not alleged the citizenship of each of the parties, it appears

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evident from the fact of her complaints that she is a resident of California and that some, if not all, of

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the Defendants would be California citizens. Thus, complete diversity does not exist.

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Additionally, having reviewed the facts alleged in the second amended complaint, it appears

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as though Plaintiff’s only federal claim is time barred. Without a valid federal claim, this Court

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lacks jurisdiction over this action. In her second amended complaint, Plaintiff clarifies that her
claims stem from a loan that she obtained in December of 2003. Plaintiff’s only federal claim is one

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For the Northern District of California

United States District Court

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under the Real Estate Procedures Settlement Act (“RESPA”). It is unclear which provision of

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RESPA Plaintiffs contend Defendants violated. RESPA is governed by a one or three year statute of

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limitations, depending on the alleged violation, that commences on the date the alleged violation

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occurred. See 12 U.S.C. § 2614. However, because Plaintiff’s RESPA claim pertains to actions that

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occurred in December of 2003, when Plaintiff signed the loan documents, Plaintiff’s RESPA claim

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is time-barred regardless of what provision of RESPA Plaintiff contends Defendants violated.

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Although the Ninth Circuit has not addressed the question of whether equitable tolling is

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available under RESPA, several district courts have determined that equitable tolling is available.

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See Rosal v. First Fed. Bank of Cal., 671 F. Supp. 2d 1111, 1125 (N.D. Cal. 2009). Assuming that

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equitable tolling applies to the RESPA claim, Plaintiff has not alleged facts that would demonstrate

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why she did not have a reasonable opportunity to discover the alleged violations within the

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limitations period. See Pineda v. Wash. Mut. Bank, FA, 2011 WL 249486, at *5 (N.D. Cal. Jan. 25,

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2011) (declining to toll the limitations period for the plaintiffs’ RESPA claim because they failed to

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provide facts to support the conclusion that “the facts surrounding this loan transaction were

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purposefully hidden and continue to be hidden from them”).

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Therefore, Plaintiff is HEREBY ORDERED TO SHOW CAUSE (“OSC”) in writing, by

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July 22, 2011, why this action should not be dismissed for lack of jurisdiction. Specifically,

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Plaintiff shall address what facts, if any, she could allege that would support tolling the statute of
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limitations on her RESPA claim. If Plaintiff can demonstrate that this Court has jurisdiction, the

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Court will set her motion for leave to amend for a hearing. Plaintiff is admonished that her failure to

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respond this Order by July 22, 2011, will result in a dismissal of this action for lack of subject

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matter jurisdiction.

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IT IS SO ORDERED.

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Dated: June 24, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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ANNETTE HORNSBY,

Case Number: CV10-04928 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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LITTON LOAN SERVICING et al,
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Defendant.

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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
12 District Court, Northern District of California.
13 That on June 24, 2011, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
14 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.
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17 Annette Hornsby
2319 Benington Drive
18 Vallejo, CA 94591
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20 Dated: June 24, 2011
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk