Nguyen et al v. Caldo Oil Company et al

Filing 68

ORDER TO SHOW CAUSE AS TO WHY REMAINING DEFENDANTS SHOULD NOT BE DISMISSED WITH PREJUDICE FOR LACK OF SUBJECT MATTER JURISDICTION. Signed by Judge Lucy Koh on 09/16/2015. (lhklc2S, COURT STAFF) (Filed on 9/16/2015)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
SAN JOSE DIVISION

United States District Court
Northern District of California

11
12

HUNG NGUYEN, et al.,

13

Plaintiffs,

14
15
16

Case No. 15-CV-02296-LHK
ORDER TO SHOW CAUSE AS TO
WHY CASE SHOULD NOT BE
DISMISSED WITH RESPECT TO
REMAINING DEFENDANTS FOR
LACK OF SUBJECT MATTER
JURISDICTION

v.
CALDO OIL COMPANY, et al.,
Defendants.

17
18

On June 30, 2015, (1) Defendant Flyers Energy, LLC (“Flyers Energy”) and (2)

19

Defendants Peter McIntyre, an individual doing business as AEI Consultants, and All

20

Environmental, Inc. (collectively, the “AEI Defendants”) filed motions to dismiss. ECF Nos. 34

21

& 36. After full briefing, the Court granted both motions to dismiss with prejudice because the

22

Court lacked subject matter jurisdiction over Plaintiffs’ claims against Defendant Flyers Energy

23

and the AEI Defendants. ECF No. 67. The Court found that there was no diversity jurisdiction

24

and that there was no federal question jurisdiction. For the reasons stated below, the Court hereby

25

issues an Order to Show Cause as to why the case should not be dismissed with prejudice with

26

respect to the remaining Defendants in the case also for lack of subject matter jurisdiction.

27
28

1
Case No. 15-CV-02296-LHK
ORDER TO SHOW CAUSE AS TO WHY CASE SHOULD NOT BE DISMISSED WITH RESPECT TO
REMAINING DEFENDANTS FOR LACK OF SUBJECT MATTER JURISDICTION

1

The remaining Defendants in the instant case are Defendants: (1) Caldo Oil Company

2

(“Caldo Oil”); and (2) Victor J. LoBue, as an individual and as trustee of the Victor J. LoBue

3

Family Trust; the Victor J. LoBue Trust; the LoBue Living Trust; the LoBue Family Trust; the

4

Estate of Salvadore R. LoBue; and the Estate of Tanie Ann LoBue (collectively, the “LoBue

5

Defendants”). Caldo Oil and the LoBue Defendants did not join in either Flyers Energy’s or the

6

AEI Defendants’ motions to dismiss. Caldo Oil and the LoBue Defendants have until October 9,

7

2015, to file an answer or motion to dismiss to Plaintiffs’ complaint. ECF No. 52.

8
9

However, the Court notes that the caption to Plaintiffs’ complaint lists Plaintiff N & H
Investments, LLC as a California limited liability company and Defendant Caldo Oil as a
California corporation. In addition, the operative complaint filed in another case before this Court,

11
United States District Court
Northern District of California

10

Green Valley Corp. v. Caldo Oil Co., states that Victor J. LoBue was the President of Caldo Oil

12

and that some, if not all, of the other LoBue Defendants are entities located in California. See No.

13

09-CV-4028-LHK (N.D. Cal.), ECF No. 125 ¶¶ 9–13. Finally, in Plaintiffs’ complaint in the

14

instant case, Plaintiffs assert the exact same causes of action and seek the exact same form of relief

15

“[a]gainst [a]ll Defendants.” ECF No. 1 at 9–10.

16

In light of these circumstances, the Court hereby ORDERS Plaintiffs to show cause why

17

the remaining Defendants in the instant case—Caldo Oil and the LoBue Defendants—should not

18

be dismissed with prejudice for lack of subject matter jurisdiction. Plaintiffs have until September

19

30, 2015, to file a response not to exceed ten (10) pages in length to this Order to Show Cause.

20

The remaining Defendants may file a reply not to exceed ten (10) pages in length within 14 days

21

of the filing of Plaintiffs’ response. A hearing on this Order to Show Cause is set for November

22

12, 2015, at 1:30 p.m. As stated in this Court’s Order granting Flyers Energy’s and the AEI

23

Defendants’ motions to dismiss, ECF No. 67, the next case management conference is set for

24

November 12, 2015, at 1:30 p.m.

25

IT IS SO ORDERED.

26
27
28

2
Case No. 15-CV-02296-LHK
ORDER TO SHOW CAUSE AS TO WHY CASE SHOULD NOT BE DISMISSED WITH RESPECT TO
REMAINING DEFENDANTS FOR LACK OF SUBJECT MATTER JURISDICTION

1
2
3

Dated: September 16, 2015.
______________________________________
LUCY H. KOH
United States District Judge

4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3
Case No. 15-CV-02296-LHK
ORDER TO SHOW CAUSE AS TO WHY CASE SHOULD NOT BE DISMISSED WITH RESPECT TO
REMAINING DEFENDANTS FOR LACK OF SUBJECT MATTER JURISDICTION