Boggs et al v. Wells Fargo Bank, NA et al

Filing 98

ORDER TO SHOW CAUSE Show Cause Response due by 6/8/2012.. Signed by Judge ARMSTRONG on 5/25/12. (lrc, COURT STAFF) (Filed on 5/25/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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7 DOUGLAS BOGGS, MICHELLE A.

Case No: C 11-2346 SBA

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ORDER TO SHOW CAUSE RE
REMAND

MOQUIN,

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Plaintiffs,
vs.
WELLS FARGO BANK NA, WACHOVIA

11 MORTGAGE, WORLD SAVINGS,

GOLDEN W SAV. ASSOC. SERVICES CO.,

12 NDEX WEST LLC, LSI Title Co., and DOES

1 to 50,

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Defendants.

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Plaintiffs Douglas Boggs and his wife, Michelle A. Moquin, filed a pro se Complaint

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against Wells Fargo Bank NA (“Wells Fargo”), Wachovia Mortgage (“Wachovia”), World

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Savings Bank FSB (“World Savings”), Golden West Savings Association Services

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Company (“Golden West”), and NDEx West LLC (“NDEx”) in the Alameda County

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Superior Court on April 11, 2011. Plaintiffs allege that they were defrauded by Defendants

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in connection with a home equity loan they obtained from World Savings in 2005. The

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Complaint alleged state law causes of action for fraud and breach of contract.

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On May 12, 2011, Wells Fargo (successor to World Savings and Wachovia) and

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Golden West, joined by NDEx, removed the action to this Court on the basis of diversity

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jurisdiction, 28 U.S.C. § 1332. Notice of Removal, Dkt. 1. Thereafter on July 27, 2011,

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Plaintiffs filed a “joinder” which purported to join LSI Title Company (“LSI”) as a party-

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defendant. Dkt. 25, 26.

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On October 24, 2011, the Court granted Defendants’ motion to dismiss and granted

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Plaintiffs leave to amend their fraud claim. Dkt. 47. On November 14, 2011, Plaintiffs

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filed a Second Amended Complaint (“SAC”) which alleges four fraud claims against Wells

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Fargo, Wachovia, World Savings, Golden West, NDEx and LSI. Dkt. 54. In response,

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Defendants have filed motions to strike and to dismiss the SAC for failure to state a claim

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under Federal Rule of Civil Procedure 12(b)(6). Dkt. 56, 57, 59.

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Before considering the merits of Defendants’ motions, the Court must first

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determine whether it has jurisdiction over the action. See United Investors Life Ins. Co. v.

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Waddell & Reed, Inc., 360 F.3d 960, 966 (9th Cir. 2004) (federal courts have a duty to

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examine their subject matter jurisdiction whether or not the parties raise the issue).

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Although Defendants removed the action on the basis of diversity jurisdiction, Plaintiffs

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now appear, based on their reference to “18 U.S.C 47 β 1001 [sic],” to allege federal

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question jurisdiction under 28 U.S.C. § 1331. SAC at 3. The Court construes this citation

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as reference to Chapter 47 of Title 18 of the United States Code, which pertains “Fraud and

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False Statements.” See United States v. Youssef, 547 F.3d 1090, 1095 (9th Cir. 2008); see

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also 18 U.S.C. § 1001(a) (imposing criminal penalties for false statements). However,

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there is no private right of action under Title 18 to bring civil fraud claims. See Fed.

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Savings & Loan Ins. Corp. v. Reeves, 816 F.2d 130, 137 (4th Cir. 1987); accord Dowdell v.

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Sacramento Housing & Redevelopment Agency, No. 2:11-cv-00409 JAM KJN PS, 2011

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WL 837046, at *2 (E.D. Cal. Mar. 8, 2011) (citing cases). As such, the Court liberally

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construes Plaintiffs’ fraud claims as arising under California law. Balistreri v. Pacifica

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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (pro se pleadings to be liberally construed).

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Since Plaintiffs’ claims arise, if at all, under state law, the Court must now consider

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whether it has jurisdiction based on the diversity of the parties. The diversity jurisdiction

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statute confers jurisdiction in cases where the plaintiffs and defendants are citizens of

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different states and where the amount in controversy exceeds the sum of $75,000. 28

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U.S.C. § 1332. The diversity statute is strictly construed, and any doubts are resolved

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against finding jurisdiction. See Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1092
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(9th Cir.1983). It is apparent from the face of the SAC that at least $75,000 is in

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controversy. However, it is unclear whether there is complete diversity between the

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parties—particularly between Plaintiffs and Defendants LSI and Golden West.

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Accordingly,

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IT IS HEREBY ORDERED THAT:

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1.

The parties shall show cause why the instant action should not be remanded

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for lack of subject matter jurisdiction. Plaintiff and Defendants each shall submit a written

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response, not to exceed seven (7) pages, to this Order by no later than June 8, 2012,

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Defendants collectively may submit only one brief. The parties may not submit any other

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filings without prior leave of Court until such time as the Court rules on the instant Order to

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Show Cause. The Order to Show Cause will be resolved based on the papers submitted.

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Civ. L.R. 7-1(b). The failure to timely respond to this Order will result in the remand of

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this action to state court.

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2.

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are moot.

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The Clerk shall terminate Docket 84, 87, 89 and 91, as all of those requests

IT IS SO ORDERED.
Dated: May 25, 2012

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
DOUGLAS J BOGGS et al,

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Plaintiff,

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v.
WELLS FARGO BANK NA et al,
Defendant.

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Case Number: CV11-02346 SBA

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CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on May 25, 2012, 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 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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Douglas J. Boggs
5111 Telegraph Avenue
#262
Oakland, CA 94609
Michelle A. Moquin
5111 Telegraph Avenue
#262
Oakland, CA 94609

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Dated: May 25, 2012
Richard W. Wieking, Clerk

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By: Lisa Clark, Deputy Clerk

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