Ortiz v. Bank of America Home Loan Retention Division

Filing 50

ORDER by Magistrate Judge Howard R. Lloyd granting defendants' 43 Motion to Dismiss Second Amended Complaint. The Court finds that further amendment would be futile and thus dismisses this action with prejudice. The Clerk shall close the file. (hrllc1, COURT STAFF) (Filed on 7/31/2013)

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*E-FILED: July 31, 2013*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

For the Northern District of California

United States District Court

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RAFAEL ORTIZ,
Plaintiff,
v.
BANK OF AMERICA HOME LOAN
RETENTION DIV.; ET AL.,
Defendants.
____________________________________

No. C12-01131 HRL
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS SECOND
AMENDED COMPLAINT
(Dkt. 43)

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Plaintiff, proceeding pro se, has filed a second amended complaint that attempts to set forth
the requirements for subject matter jurisdiction, but does not actually state any facts in support of its
claim for subject matter jurisdiction, or any facts that could be construed to support any claim for
relief. Though the second amended complaint does not mention any state or federal claims or allege
any facts, the Court has learned from previous filings and hearings that plaintiff believes that
defendants have violated his rights by selling his real property to a third party. Defendants move to
dismiss the second amended complaint for lack of subject matter jurisdiction, for failure to meet the
pleading requirements of the Federal Rules of Civil Procedure, and for failure to state a claim upon
which relief can be granted. On July 30, 2013, all parties appeared and the Court held a hearing on
defendants’ motion.
The Court granted defendants’ motion to dismiss the original complaint on the basis that the
Court lacked subject matter jurisdiction. The Court granted defendants’ motion to dismiss the first
amended complaint on the basis that, even though there appeared to be a basis for diversity
jurisdiction, plaintiff had failed to plead it. In its order dismissing the first amended complaint, the

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Court instructed plaintiff on how to plead diversity jurisdiction. 1 It advised that “the second

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

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

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(Dkt. 42, p. 2). The Court also warned plaintiff that his second amended complaint had to be a

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stand-alone document and include claims for relief as well as a basis for jurisdiction. 2 The Court

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instructed that “the second amended complaint must not only properly allege the basis for this

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Court’s jurisdiction, but it must also properly allege claims for relief.” (Id.) The Court then

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outlined the pleading requirements of Fed. R. Civ. P. 8(a)(2) and reiterated the necessity of

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including a short and plain statement of a claim for relief. (Id.)
Despite the Court’s instructions on how to plead subject matter jurisdiction, the second

For the Northern District of California

United States District Court

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amended complaint still does not measure up. The second amended complaint only misstates the

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requirements for federal subject matter jurisdiction and attaches, as an exhibit, an excerpt from

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Wikipedia on subject-matter jurisdiction. Plaintiff does not indicate the citizenship of any of the

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parties, the amount in controversy, and he does not mention any claims for relief or facts that could

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be liberally construed to support any claims for relief. Plaintiff opposes the motion to dismiss, but

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his opposition does not provide the Court with a basis for subject matter jurisdiction either. Plaintiff

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argues that the state court, where he first filed his action, had jurisdiction over his real property. 3

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Plaintiff further argues that the state court judgment, which was apparently against him, was issued

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by a judicial officer as opposed to a judge. Plaintiff also alleges that defendants’ attorneys were

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improperly substituted. Finally, plaintiff makes a vague reference to fraud and frivolity, stating that

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“no good title can ever be derived from fraud that reaches any alleged bona fide purchaser.”

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Plaintiff has not plead subject matter jurisdiction and, even if he had, nothing in the second amended

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complaint or other papers submitted by plaintiff can be construed to amount to a claim for relief.

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Plaintiff does not meet the pleading requirements of Fed. R. Civ. P. 8(a)(2) or state any claims for

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relief.

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At the hearing on defendants’ motion to dismiss the first amended complaint, the Court also advised plaintiff to make
an appointment with the Court’s Pro Se Help Desk.
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“[T]he second amended complaint will completely replace the original complaint and the amended complaint. It must
stand on its own.” (Dkt. 42, p. 2).
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At the hearing on the motion to dismiss the second amended complaint, plaintiff, through a representative/family
member who was providing translating services, indicated that he had previously filed a state court complaint.
Apparently the first state court case has been dismissed, but plaintiff has filed a second state court complaint, in
Stanislaus County, which is still pending.

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After giving plaintiff two opportunities to amend his Complaint, he has still not plead subject

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matter jurisdiction or stated any claims for relief. Even assuming that the Court has diversity

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jurisdiction, the second amended complaint does not offer a short and plain statement of plaintiff’s

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claims or contain the specific, individualized factual allegations necessary to state a claim. The

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Court finds further amendment would be futile and thus DISMISSES this action with prejudice.

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The Clerk shall close the file.

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SO ORDERED.

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Dated: July 31, 2013

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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]

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C 12-01131 HRL Order will be mailed to:

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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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