Shaw v. JPMorgan Chase Bank, N.A. et al

Filing 40

Order by Hon. James Donato: Plaintiff's complaint is dismissed for lack of subject matter jurisdiction. Plaintiff may file an amended complaint by March 1, 2016. Defendants' 14 Motion to Dismiss is denied without prejudice. (jdlc1S, COURT STAFF) (Filed on 2/1/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SADIE S. SHAW,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 15-cv-01755-JD
ORDER DISMISSING COMPLAINT

v.

Re: Dkt. No. 14
OCWEN LOAN SERVICING, LLC, et al.,
Defendants.
Pro se plaintiff Sadie Shaw filed this diversity action against various defendants on April

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17, 2015, alleging thirteen causes of action stemming from “negligent, fraudulent and unlawful

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conduct concerning a residential DOT loan transaction and foreclosure action.” Dkt. No. 1 ¶ 1.

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Shaw dismissed defendant JPMorgan Chase Bank, N.A. from the case with prejudice on October

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13, 2015. Dkt. No. 35. The Court stayed defendants Ocwen Loan Servicing, LLC’s and

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Mortgage Electronic Registration Systems, Inc.’s motion to dismiss, Dkt. No. 14, pending the

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parties’ participation in alternative dispute resolution. Dkt. No. 27. At the unsuccessful

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conclusion of that process, the Court lifted the stay and ordered Shaw to respond to the Complaint,

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which she did on October 20, 2015. Dkt. Nos. 36, 37. Shaw agreed to drop all claims and

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arguments “related to securitization,” and indicated she would only maintain claims based on “the

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aforementioned Civil Code sections, as well as Fraud and material breaches.” Dkt. No. 37 at 2.

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The Court finds this matter suitable for resolution without oral argument pursuant to Civil Local

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Rule 7-1(b) and now dismisses the complaint for lack of subject matter jurisdiction.

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DISCUSSION
The Court’s first order of business in every case is making sure that its jurisdiction has

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been properly established. “Federal courts are courts of limited jurisdiction. See Bender v.

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Williamsport Area School Dist., 475 U.S. 534, 541 (1986). If not given the power to consider a

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claim under the United States Constitution or a federal statute, they lack subject matter jurisdiction

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and must dismiss the claim. See Chen–Cheng Wang ex rel. United States v. FMC Corp., 975 F.2d

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1412, 1415 (9th Cir.1992). The party asserting subject matter jurisdiction bears the burden of

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showing that it exists. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994).”

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Cupp v. Straley, No. 15–cv–01565–JD, 2015 WL 4735212 at *2 (N.D. Cal. Aug 10, 2015); see

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also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter

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jurisdiction, the court must dismiss the action.”) Here, plaintiff invokes diversity jurisdiction

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under 28 U.S.C. § 1332(a). “The essential elements of diversity jurisdiction, including the diverse

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residence of all parties, must be affirmatively alleged in the pleadings.” Bautista v. Pan Am.

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World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987) (internal citation omitted).

United States District Court
Northern District of California

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Shaw’s complaint fails this requirement. The complaint does not provide enough

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information to establish that this is an action between “citizens of different States” that the Court

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is empowered to hear. 28 U.S.C. § 1332(a)(1). As an initial matter, plaintiff’s own citizenship for

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diversity purposes is unclear. A person is a citizen of the state where she is domiciled, which is

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the “location where he or she has established a fixed habitation or abode in a particular place, and

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[intends] to remain there permanently or indefinitely.” Lew v. Moss, 797 F.2d 747, 749-50 (9th

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Cir.1986) (internal quotation marks and citation omitted). This is an open question for plaintiff

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because she is using a Tennessee address in the header and signature block of the Complaint, Dkt.

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No. 1 at 1, 37, 38, but alleges she is a “resident[]” of Alameda County, California. Id. at ¶¶ 8, 21.

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Shaw also fails to allege the citizenship of defendant Ocwen Loan Servicing, LLC (“Ocwen”).

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Plaintiff alleges only that Ocwen “is a national association organized outside the state of

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California.” Id. at ¶ 13. This is too vague a basis for establishing diversity citizenship because

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“partnerships, LLC’s and other unincorporated associations are citizens of every state of which its

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owners/members are citizens.” Moss v. Infinity Ins. Co., No. 15-CV-03456-JSC, 2015 WL

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7351395, at *2 (N.D. Cal. Nov. 20, 2015) (citing Johnson v. Columbia Props. Anchorage, LP, 437

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F.3d 894, 899 (9th Cir. 2006)). Shaw provides no information of any kind about the citizenship of

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any of Ocwen’s members, and no allegation that their citizenship differs from hers. The complaint

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fails to lay the foundation for diversity jurisdiction and consequently must be dismissed.
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Shaw may try to amend the complaint with proper diversity allegations by March 1, 2016.

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It is possible that Shaw may not be able to obtain definitive information about the citizenship of

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Owcen’s members. If so, the Ninth Circuit provides that the plaintiff may “plead its jurisdictional

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allegations as to those defendants on information and belief and without affirmatively asserting

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those defendants’ citizenship.” Carolina Cas. Ins. Co. v. Team Equip., Inc., 741 F.3d 1082, 1086

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(9th Cir. 2014). If plaintiff pleads under this standard, and defendants challenge the Complaint for

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lack of jurisdiction, defendants should provide the Court with evidence about their citizenship.

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See id. at 1088. If plaintiff chooses to amend, she should also clearly allege the state in which she

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is domiciled.
For the benefit of the parties in avoiding unnecessary motion work if plaintiff should

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United States District Court
Northern District of California

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amend, the Court notes that plaintiff’s allegation of the amount in controversy is acceptable.

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Plaintiff expressly alleges that “[t]he amount in controversy exceeds $75,000.00.” Dkt. No. 1 ¶

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23. That is all she needs to say and specific facts supporting that allegation are not required under

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Section 1332(a). See Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553

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(2014) (“When a plaintiff invokes federal-court jurisdiction, the plaintiff’s amount-in-controversy

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allegation is accepted if made in good faith”). Defendants’ papers also suggest that plaintiff

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obtained the property at issue in this litigation through a loan in the amount of $402,500. See, e.g.,

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Dkt. No. 14-1, Exh. A at 2. Because the plaintiff’s complaint seeks to enjoin defendants from

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foreclosing on the subject property, the amount in controversy in this action should measure at

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least $402,500. See Reyes v. Wells Fargo Bank, N.A., No. 10-1667, 2010 WL 2629785, at *4

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(N.D. Cal. June 29, 2010) (stating, “If the primary purpose of a lawsuit is to enjoin a bank from

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selling or transferring property, then the property is the object of the litigation,” and collecting

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cases); see also Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347 (1977) (“In actions

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seeking declaratory or injunctive relief, it is well established that the amount in controversy is

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measured by the value of the object of the litigation.”)

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CONCLUSION
The Court dismisses plaintiff’s complaint for lack of subject matter jurisdiction. Plaintiff
may file an amended complaint not later than March 1, 2016. Plaintiff may amend only the
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jurisdiction and citizenship allegations; she cannot add any new claims or parties, or reassert the

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claims or arguments “related to securitization” that she has abandoned. Dkt. No. 37 at 2.

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Defendants’ motion to dismiss is denied without prejudice to renewal if warranted in response to

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plaintiff’s amended complaint.

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IT IS SO ORDERED.

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Dated: February 1, 2016

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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