Johnson v. Wells Fargo Bank, National Association as Trustee et al

Filing 6

ORDER DISMISSING CASE. First Amended Complaint is dismissed w/o prejudice for failing to state a claim upon which relief can be granted. Pla is granted 30 days from the file date of this Order to file a Second Amended Complaint addressing the deficiencies. Court directs Pla to the Dec. 10th Order for greater explanation for the deficiencies. Signed by Judge Irma E. Gonzalez on 2/12/2009. Case is closed. (All non-registered users served via U.S. Mail Service).(jah)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
PATRICIA A. JOHNSON, vs. Plaintiff, CASE NO. 08cv2221- IEG (AJB) ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM [Doc. No. 4]

WELLS FARGO BANK, NATIONAL ASSOCIATION as TRUSTEE; QUALITY LOAN SERVICE CORP., Defendant.

On December 10, 2008, this Court dismissed plaintiff's complaint sua sponte for a failure to state a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2). (Doc. No. 3.) In the December 10 order, the Court detailed the complaint's deficiencies and granted leave to amend to cure those deficiencies. On January 2, 2009, plaintiff filed a First Amended Complaint alleging defendants (1) counterfeited securities in violation of 18 U.S.C. 513(a) and (2) violated the Truth in Lending Act by failing to give full disclosure. (Doc. No. 4.) In her First Amended Complaint, plaintiff has rearranged the text of the Original Complaint, but only added one new paragraph: Only by Appointment of an Article III Court Justice and Common Law Proceedings before a well informed Jury who understands the rules of Common Law and a Special Grand Jury Investigation, Appointments of Article II Court Guidelines under the separation of power act and the following: Challenge under Title 5 556(D).1 The cited statute, 5 U.S.C. § 556(d), governs the procedure for administrative hearings; therefore, the statute is inapplicable to the current proceeding. -108cv2221- IEG (AJB)

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(FAC at 11, Doc. No. 4.) The addition of this paragraph does not cure the deficiencies detailed in the Court's December 10 order. (Doc. No. 3.) In that Order, the Court discussed, in detail, two fatal flaws with plaintiff's complaint: (1) as to claim one, the complaint fails to allege facts to support her claim that her mortgage was counterfeited; and (2) as to claim two, the complaint does not allege the defendants failed to make any of the disclosures required by the Truth and Lending Act. (Dec. 10, 2008 Order at 2- 4, Doc. No. 3.) Plaintiff has failed to address these flaws in her First Amended Complaint. CONCLUSION For the foregoing reasons, the First Amended Complaint is DISMISSED WITHOUT PREJUDICE for failing to state a claim upon which relief can be granted. Plaintiff is GRANTED thirty (30) days from the file date of this Order to file a Second Amended Complaint addressing the two deficiencies set forth above. If the Second Amended Complaint does not cure the deficiencies, the Court is disinclined to grant additional leave to amend. For greater explanation of these deficiencies, the Court directs plaintiff to the December 10 Order. Plaintiff is cautioned her Second Amended Complaint must be complete in itself, without relying on references to the First Amended Complaint or the Original Complaint. Plaintiff is further cautioned any defendant not named or claim not re-alleged will be considered waived. See King v. Attiyeh, 814 F.3d 1172, 1177-79 (9th Cir. 1996).

IT IS SO ORDERED. DATED: February 12, 2009 IRMA E. GONZALEZ, Chief Judge United States District Court

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08cv2221- IEG (AJB)