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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1 *E-FILED: March 19, 2013* 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 10 For the Northern District of California NOT FOR CITATION 9 United States District Court 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 14 15 RAFAEL ORTIZ, Plaintiff, v. No. C12-01131 HRL ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS BANK OF AMERICA HOME LOAN RETENTION DIV.; ET AL., Defendants. ____________________________________ 16 17 Plaintiff, proceeding pro se, filed a complaint alleging “invalid notice of default and election 18 to sell un[]der the deed of trust,” and “non[] compliance with successor by merger legal 19 prerequisites,” in violation of California State law. Plaintiff’s property was sold at a foreclosure sale 20 and, according to Defendants, is now owned by a third party. The Complaint does not allege any 21 federal claims or make any allegations regarding subject matter jurisdiction. Defendants have 22 moved to dismiss the complaint for lack of subject matter jurisdiction, for failure to meet the 23 pleading standards of Federal Rule of Civil Procedure 8(a), and for failure to state a claim pursuant 24 to Federal Rule 12(b)(6). The Court held a hearing on March 19, 2013, at which all parties 25 appeared. After considering the complaint, the papers submitted by the parties, and oral arguments, 26 the Court finds that it does not have subject matter jurisdiction over this case. 27 28 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 1 of different states only “where the matter in controversy exceeds the sum or value of $75,000, 2 exclusive of interest and costs.” 28 USC § 1332 (a). Federal courts have jurisdiction on federal 3 question grounds when an action “aris[es] under the Constitution, laws, or treaties of the United 4 States.” 28 U.S.C. § 1331. A claim “arises under” federal law if, based on the “well-pleaded 5 complaint rule,” the plaintiff alleges a federal claim for relief. Vaden v.Discovery Bank, 129 S. Ct. 6 1262, 1272 (2009). Plaintiff’s complaint does not allege any federal claims whatsoever. Nor does 7 Plaintiff assert diversity jurisdiction under 28 U.S.C. § 1332. 8 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 10 United States District Court 9 file an Amended Complaint, he shall do so no later than April 10, 2013. Any Amended Complaint 11 shall clearly state the basis for this Court’s jurisdiction. Because the Court does not have subject 12 matter jurisdiction, it does not consider Defendants’ motion to dismiss for failure to meet the 13 pleading standards of Federal Rule of Civil Procedure 8(a), and for failure to state a claim pursuant 14 to Federal Rule 12(b)(6). 15 16 IT IS SO ORDERED. Dated: March 19, 2013 17 18 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2 1 C 12-01131 HRL Order will be electronically mailed to: 2 Lee Hammer: lhammer@mcguriewoods.com, lhammer@mcguirewoods.com, mbetti@mcguirewoods.com 3 4 5 6 7 Tracy Kathleen Evans-Moyer: temoyer@mcguirewoods.com, lgomez@mcguirewoods.com C 12-01131 HRL Order will be mailed to: Rafael Ortiz 20240 Spence Road Salinas, CA 93908 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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