Townsend et al v. Wells Fargo Bank, N.A. et al

Filing 19

ORDER TO SHOW CAUSE. Motion to Dismiss Hearing set for 5/31/2013 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge JEFFREY S. WHITE on 4/8/13. (jjoS, COURT STAFF) (Filed on 4/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SCOT TOWNSEND and SHELLY
TOWNSEND,

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No. C 12-06150 JSW

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v.
For the Northern District of California

United States District Court

Plaintiffs,
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ORDER TO SHOW CAUSE
WELLS FARGO BANK, N.A., AMERICAN
HOME MORTGAGE SERVICING, INC, and
DOES 1 through 100,

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Defendants.
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/

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

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sua sponte at any time it appears subject matter jurisdiction may be lacking. Fed. R.

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Civ. P. 12; Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). If the Court

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determines that subject matter jurisdiction is lacking, the Court must dismiss the case. Id.; Fed.

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R. Civ. P. 12(h)(3).

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The Court notes that there is a split in authority regarding whether national banking

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associations are citizens of the state where their principal place of business is located, as well as

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their main office. District courts within California are divided on whether American Surety Co.

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v. Bank of California, 133 F.2d 160 (9th Cir. 1943) and Wachovia Bank v. Schmidt, 546 U.S.

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303 (2006) are reconcilable. Compare e.g., Flores v. Wells Fargo Bank, N.A., 2012 WL

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832546, *2 (N.D. Cal. March 12, 2012) (finding that Schmidt abrogated American Surety); with

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e.g., Taheny v. Wells Fargo Bank, N.A., 2012 WL 1120140, *6 (E.D. Cal. April 3, 2012); Rouse

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v. Wachovia Mortg., 2012 WL 174206, *12 (C.D. Cal. Jan. 13, 2012); Rodriguez v. Wells Fargo

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Bank, Nat. Ass’n, 2012 WL 1940572, *3 (S.D. Cal. May 25, 2012) (finding that American

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Surety and Schmidt are reconcilable).

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The Court HEREBY ORDERS Defendants to show cause why this Court has

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jurisdiction in writing by no later than April 17, 2013. Plaintiffs may file a response by no later

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than April 26, 2013. The Court FURTHER ORDERS that the hearing on Defendants’ motion

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to dismiss is CONTINUED to May 31, 2013.

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IT IS SO ORDERED.

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Dated: April 8, 2013
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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