Ortiz v. Bank of America Home Loan Retention Division

Filing 41

ORDER by Magistrate Judge Howard R. Lloyd granting 33 Motion to Dismiss, and granting Plaintiff leave to file a second amended comlaint. If plaintiff wishes to file a second amended complaint, he shall do so no later than June 24, 2013. (hrllc1, COURT STAFF) (Filed on 5/23/2013)

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*E-FILED: May 23, 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NOT FOR CITATION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, has filed an amended complaint that alleges defendants have

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violated his rights by selling his real property to a third party. Defendants move to dismiss the

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amended complaint for lack of subject matter jurisdiction, for failure to meet the pleading

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requirements of the Federal Rules of Civil Procedure, and for failure to state a claim upon which

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relief can be granted. On May 21, 2013, all parties appeared and the Court held a hearing on

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defendants’ motion.

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The Court granted defendants’ motion to dismiss the original complaint on the basis that the

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Court lacked subject matter jurisdiction. In its order, the Court explained that Federal courts have

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original subject matter jurisdiction over civil actions on either diversity or federal question grounds.

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28 U.S.C. § 1441. Diversity jurisdiction exists in a suit between citizens of different states only

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“where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and

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costs.” 28 USC § 1332 (a). Federal courts have jurisdiction on federal question grounds when an

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action “aris[es] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A

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claim “arises under” federal law if, based on the “well-pleaded complaint rule,” the plaintiff alleges

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a federal claim for relief. Vaden v.Discovery Bank, 129 S. Ct. 1262, 1272 (2009).

whatsoever. The Court again concludes that it does not have jurisdiction based on a federal

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question. Nor does Plaintiff assert diversity jurisdiction under 28 U.S.C. § 1332. Although the

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amended complaint alleges that the amount in controversy exceeds $75,000, it does not identify the

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citizenship of any of the parties. At the hearing, however, plaintiff stated that he is a citizen of

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California, and defendant Bank of America Home Loan Retention Division stated that it is a citizen

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For the Northern District of California

Neither the original complaint, nor the amended complaint, allege any federal claims

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United States District Court

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of North Carolina. The Court concludes that, though not adequately pled in the amended complaint,

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plaintiff could likely assert diversity jurisdiction if given leave to amend once again.

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Accordingly, the Court grants defendants’ motion to dismiss the amended complaint for lack

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of subject matter jurisdiction, but it grants plaintiff leave to file a second amended complaint.

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Though the Court has reason to believe that diversity jurisdiction exists, plaintiff is reminded that he

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needs to allege diversity jurisdiction in his second amended complaint. The second amended

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complaint must therefore indicate the citizenship of each party in the suit, and the amount of money

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sought by plaintiff, or the approximate value of the equitable relief sought by plaintiff.

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Plaintiff is further reminded that the second amended complaint will completely replace the

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original complaint and the amended complaint. It must stand on its own. So, the second amended

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complaint must not only properly allege the basis for this Court’s jurisdiction, but it must also

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properly allege claims for relief. “Federal Rule of Civil Procedure 8(a)(2) requires only a ‘short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the claim is and the grounds upon which it rests.’” Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 554 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). However, “a plaintiff’s

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obligation to provide the grounds of his entitlement to relief requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,

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550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal brackets and quotation

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marks omitted)). The Court need not assume unstated facts, nor will it draw unwarranted
inferences. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009); Cousins v. Lockyer, 568 F.3d 1063,
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1067 (9th Cir. 2009). Though a pro se complaint will be construed liberally and held to less

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stringent standards than formal pleadings drafted by lawyers, the Court may not “supply essential

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elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673

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F.2d 266, 268 (9th Cir. 1982); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per

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curiam).
If plaintiff wishes to file a second amended complaint, he shall do so no later than June 24,

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2013.
IT IS SO ORDERED.
Dated: May 23, 2013

For the Northern District of California

United States District Court

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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 93905

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For the Northern District of California

United States District Court

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