Fernandez v. Alliance Bancorp et al

Filing 75

ORDER by Judge Howard R. Lloyd denying 73 Motion for Reconsideration (hrllc1, COURT STAFF) (Filed on 1/22/2009)

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1 2 3 4 5 6 7 8 9 10 GILBERTO FERNANDEZ, Plaintiff, v. ALLIANCE BANCORP, GMAC MORTGAGE, NCC SERVICING, LLC, GRAYSTONE SOLUTIONS INC., EXECUTIVE TRUSTEE SERVICES, LLC, CONSUMER SOLUTIONS REO, LLC, FIRST AMERICAN TITLE COMPANY, SELECT PORTFOLIO SERVICING, INC., HENRY M. PAULSON JR. as Secretary of the Treasury of the United States, MICHAEL B. MUKASEY, US Attorney General and Alien Property Custodian, Defendants. NOT FOR CITATION UNITED STATES DISTRICT COURT *E-filed 1/22/09* FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. 08-02909 HRL ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION TO QUASH United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In 2006, pro se plaintiff Gilberto Fernandez, obtained $1.25 million in loans from Alliance Bancorp, which he used to refinance his home in Campbell, California. After he made two payments, he defaulted. The property was eventually sold at a non-judicial trustee's sale, and the buyer undertook eviction proceedings. Fernandez then brought this suit against Alliance Bancorp and every corporate entity with any connection to the loan, its servicing, the notice of default, the trustee's sale, or the eviction action. The defendants moved to dismiss the complaint. The motions to dismiss were granted, and the complaint was dismissed for lack of subject matter jurisdiction on November 13, 2008. A judgment was entered that same day. 1 2 3 4 5 6 7 8 9 10 On December 2, 2008, Fernandez filed an "Objection and Motion to Reconsider." He did not request or receive leave to file such a motion. Civ. L.R. 7-9(a)."No party may notice a motion for reconsideration without first obtaining leave of the court to file the motion." Civ. L.R. 7-9(a). Moreover, such a motion is only permitted "[b]efore the entry of a judgment." Id. Plaintiff's motion for reconsideration is both untimely and procedurally improper. To give the plaintiff the benefit of liberal construction for pro se filings, the court construes his motion as a motion for relief from a judgment, pursuant to Federal Rule of Civil Procedure 60. See Haines v. Kerner, 404 U.S. 529, 520-21 (1972 )(stating that pro se pleadings shou(b)ld be "liberally construed.") The grounds for a motion for relief from judgment are: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation or misconduct by the opposing party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason that justifies relief.. See Fed. R. Civ. Pro. 60(b). Plaintiff's sole point of contention is that the court's order dismissing the complaint "appears to contain a misquote of 28 U.S.C. 1332." The misquote plaintiff complains about appears on page two, lines 18-19, and states that "[d]iversity jurisdiction requires that 'all parties to the action be citizens of different states.' 28 U.S.C. 1332." Plaintiff requests "reinstatement of his case" or alternatively "Findings of Fact and Conclusions of Law that support the cause for dismissal" because the phrase "citizens of different states" appears in the text of 28 U.S.C. 1332, while the phrase "all parties to the action be" does not. This observation is not a ground for relief from the judgment. See FRCP 60(b). However, to alleviate any lingering confusion the pro se plaintiff has about the grounds for the court's dismissal, or the requirements of diversity jurisdiction, the court provides the following additional explanation. The diversity jurisdiction statute, 28 U.S.C. 1332, "as construed for nearly 200 years, requires that to bring a diversity case in federal court against multiple defendants, each plaintiff must be diverse from each defendant." Lee v. American Nat. Ins. Co., 260 F.3d 997,1004 (9th Cir. 2001) (citing Wisonsin Dept. of Corrections v. Schacht, 524 U.S. at 388, 118 (1998); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, (1806)). This is known as "complete diversity." 2 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 When a plaintiff sues more than one defendant in a diversity action, plaintiff must meet the complete diversity requirement, or face dismissal. Because defendant Alliance Bancorp was identified as a citizen of California, the same state that plaintiff is a citizen of, and also because the federal defendants have no citizenship for the purposes of diversity jurisdiction, plaintiff Fernandez did not meet the requirements of complete diversity, and the complaint was dismissed. Because plaintiff has not presented any ground for relief from the judgment of dismissal, the motion is DENIED. United States District Court 11 For the Northern District of California IT IS SO ORDERED. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Dated: 1/22/09 _______________________________ HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 1 2 3 4 5 6 7 8 9 10 Notice will be sent to: larry@glennwechsler.com jgardner@sbgk.com james.scharf@usdoj.gov gribar@wrightlegal.net Gilberto Fernandez, Jr. 1461 Burrows Road Campbell, CA 95008 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program. Dated: 1/22/09 United States District Court 11 For the Northern District of California /s/ MPK Chambers of Magistrate Judge Howard R. Lloyd 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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