Bank of New York Mellon v. City of Richmond, California et al

Filing 29

Ex Parte Application re 28 MOTION to Dismiss for Lack of Jurisdiction EX PARTE MOTION TO SHORTEN TIME AND FOREGO HEARING filed by City of Richmond, California, Gordian Sword LLC, Mortgage Resolution Partners L.L.C., Richmond City Council. (Attachments: # 1 Declaration Declaration of Eric P. Brown in Support of Ex Parte, # 2 Exhibit Exhibit A to the Declaration of Eric P. Brown, # 3 Exhibit Exhibit B to the Declaration of Eric P. Brown, # 4 Exhibit Exhibit C to the Declaration of Eric P. Brown, # 5 Exhibit Exhibit D to the Declaration of Eric P. Brown, # 6 Exhibit Exhibit E to the Declaration of Eric P. Brown, # 7 Exhibit Exhibit F to the Declaration of Eric P. Brown, # 8 Exhibit Exhibit G to the Declaration of Eric P. Brown, # 9 Exhibit Exhibit H to the Declaration of Eric P. Brown, # 10 Proposed Order Proposed Order)(Leyton, Stacey) (Filed on 9/20/2013)

EXHIBIT G

Case3:13-cv-03663-CRB Document78 Filed09/16/13 Page1 of 2

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

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United States District Court
For the Northern District of California

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No. C 13-03663 CRB

WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee, et al.,
Plaintiffs,

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ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS AND
DENYING PLAINTIFFS’ MOTION FOR
A PRELIMINARY INJUNCTION

v.
CITY OF RICHMOND, CALIFORNIA, a
municipality, and MORTGAGE RESOLUTION
PARTNERS LLC,

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Defendants.

/

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Before the Court are Plaintiffs’ Motion for a Preliminary Injunction (dkt. 8) and Defendants’

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Motion to Dismiss (dkt. 38). For the reasons stated in open court at the hearing held on September

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12, 2013, the Court finds that Plaintiffs’ claims are not ripe for adjudication.1

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The Court further concludes that it must dismiss the case rather than hold it in abeyance.

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Ripeness of these claims does not rest on contingent future events certain to occur, but rather on

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future events that may never occur. In contrast to the facts in the cases Plaintiffs cite,2 such as

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See Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for adjudication
if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at
all.”) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)); Freedom to
Travel Campaign v. Newcomb, 82 F.3d 1431, 1441 (9th Cir. 1996) (“The mere possibility that [an
official] may act in an arguably unconstitutional manner . . . is insufficient to establish the real and
substantial controversy required to render a case justiciable under Article III.”) (internal quotation
omitted).
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See, e.g., Wheaton Coll. v. Sebelius, 703 F.3d 551, 553 (D.C. Cir. 2012) (case not fit for
review and “should be held in abeyance pending the new rule that the government has promised will
be issued soon”); Am. Petroleum Inst. v. EPA, 683 F.3d 382, 390 (D.C. Cir. 2012) (case held in

Case3:13-cv-03663-CRB Document78 Filed09/16/13 Page2 of 2

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proposed agency rules that will become final in some form, or pending suits in other jurisdictions

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that will reach some disposition, the issues here may never reach a resolution. Plaintiffs are not, for

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example, challenging a proposal of the City Council that may or may not raise constitutional

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concerns depending on the contours of the final version—put simply, there may never be a “final

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version.” Because there is no point at which it will be determined that Plaintiffs’ claims are not ripe

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and will never become ripe, the matter could linger in abeyance for an indefinite period of time.

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Under these circumstances, a stay is not appropriate.

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United States District Court
For the Northern District of California

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Accordingly, the Court DENIES Plaintiffs’ Motion for a Preliminary Injunction and
DISMISSES this matter for lack of subject matter jurisdiction without prejudice.3
IT IS SO ORDERED.

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Dated: September 16, 2013

CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

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abeyance until agency’s final action on proposed rule); Pardee v. Consumer Portfolio Servs., Inc., 344
F. Supp. 2d 823, 839 (D.R.I. 2004) (case not ripe and proceedings stayed until related cases in other
jurisdictions resolved).
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Plaintiffs argue that they should be granted leave to amend their complaint to address the
ripeness deficiency. The Court that finds that no amendment at this point would cure the lack of subject
matter jurisdiction. Nor does the Court find it appropriate to impose conditions on dismissal,
particularly given that the Court’s lack of jurisdiction is the very reason for dismissal.
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