Ortiz v. Bank of America Home Loan Retention Division

Filing 30

ORDER by Magistrate Judge Howard R. Lloyd Granting Defendants' 17 Motion to Dismiss. (hrllc1, COURT STAFF) (Filed on 3/19/2013)

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*E-FILED: March 19, 2013*

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IN THE UNITED STATES DISTRICT COURT

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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RAFAEL ORTIZ,
Plaintiff,
v.

No. C12-01131 HRL
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

BANK OF AMERICA HOME LOAN
RETENTION DIV.; ET AL.,
Defendants.
____________________________________

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Plaintiff, proceeding pro se, filed a complaint alleging “invalid notice of default and election

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to sell un[]der the deed of trust,” and “non[] compliance with successor by merger legal

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prerequisites,” in violation of California State law. Plaintiff’s property was sold at a foreclosure sale

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and, according to Defendants, is now owned by a third party. The Complaint does not allege any

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federal claims or make any allegations regarding subject matter jurisdiction. Defendants have

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moved to dismiss the complaint for lack of subject matter jurisdiction, for failure to meet the

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pleading standards of Federal Rule of Civil Procedure 8(a), and for failure to state a claim pursuant

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to Federal Rule 12(b)(6). The Court held a hearing on March 19, 2013, at which all parties

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appeared. After considering the complaint, the papers submitted by the parties, and oral arguments,

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the Court finds that it does not have subject matter jurisdiction over this case.

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Federal courts have original subject matter jurisdiction over civil actions on diversity or
federal question grounds. 28 U.S.C. § 1441. Diversity jurisdiction exists in a suit between citizens

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of different states only “where the matter in controversy exceeds the sum or value of $75,000,

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exclusive of interest and costs.” 28 USC § 1332 (a). Federal courts have jurisdiction on federal

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question grounds when an action “aris[es] under the Constitution, laws, or treaties of the United

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States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the “well-pleaded

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complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v.Discovery Bank, 129 S. Ct.

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1262, 1272 (2009). Plaintiff’s complaint does not allege any federal claims whatsoever. Nor does

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Plaintiff assert diversity jurisdiction under 28 U.S.C. § 1332.

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Accordingly, the Court grants Defendants’ motion to dismiss the complaint for lack of

For the Northern District of California

subject jurisdiction. Plaintiff is granted leave to file an Amended Complaint. If Plaintiff wishes to

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United States District Court

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file an Amended Complaint, he shall do so no later than April 10, 2013. Any Amended Complaint

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shall clearly state the basis for this Court’s jurisdiction. Because the Court does not have subject

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matter jurisdiction, it does not consider Defendants’ motion to dismiss for failure to meet the

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pleading standards of Federal Rule of Civil Procedure 8(a), and for failure to state a claim pursuant

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to Federal Rule 12(b)(6).

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IT IS SO ORDERED.
Dated: March 19, 2013

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HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C 12-01131 HRL Order will be electronically mailed to:

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Lee Hammer: [e-mail], [e-mail],
[e-mail]

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Tracy Kathleen Evans-Moyer: [e-mail], [e-mail]
C 12-01131 HRL Order will be mailed to:
Rafael Ortiz
20240 Spence Road
Salinas, CA 93908

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For the Northern District of California

United States District Court

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