Kirkeby v. Burns et al

Filing 36

ORDER: (1) Granting Motion to Dismiss for Lack of Jurisdiction; (2) Denying Motion to Dismiss for Failure to State a Claim as Moot; and (3) Granting Plaintiff Leave to File Second Amended Complaint (Docket Nos. 18 , 26 , 30 ). Plaintiff is ordered to file any Second Amended Complaint on or before April 15, 2015. Signed by Judge Roger T. Benitez on 3/13/2015.(All non-registered users served via U.S. Mail Service)(knb)

1

15 111',[; I 3 fllj II : 2 I

2
3
4

.,.IlOEPU-! '/

5
6
7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

ANASTASIA HELENE KIRKEBY,

11

Plaintiff,

12
13

GRANTING MOTION TO
DlSMISS FOR LACK OF
JURISDICTION

vs.

(2) DENYING MOTION TO
DlSMISS FOR FAILURE TO
STATE A CLAIM AS MOOT

15
LARRY BURNS aka LAWRENCE F.
BURZYNSKI, et ai.,

17

Defendants.

18
19

ORDER:
(1)

14

16

CASE NO. 14-CV-2883-BEN (NLS)

(3) GRANTING PLAINTIFF

LEAVE TO FILE SECOND
AMENDED COMPLAINT
[Docket Nos. 18, 26, 30]

Before this Court is a Motion to Dismiss for Lack of Jurisdiction, filed by

20 Defendants JP Morgan Chase Bank, N.A., and California Reconveyance Company.
21

22
23

(Docket No. 26.)
BACKGROUND
On December 5,2014, Mrs. Kirkeby brought this action asserting multiple

24 claims against five defendants. (Docket No. 1.) On January 12,2015, Plaintiff
25

Anastasia Kirkeby filed a First Amended Complaint asserting seven state law

26 claims: (1) violation of California Penal Code § 529, (2) California Civil Code §
27 3426, (3) California Penal Code § 502, (4) breach of the duty ofloyalty and aiding
28 and abetting breach of fiduciary duty, (5) conversion, (6) intentional interference
- 1-

14cv2883

1 with a contract, (7) California Business and Professions Code § 17200. Mrs.
2 Kirkeby's First Amended Complaint removed three defendants and added three new
3 defendants. She also added her husband, Glenn Kirkeby, as a co-plaintiff.
DISCUSSION

4

5 I. Defendants' Motion to Dismiss for Lack of Jurisdiction
6

Defendants JP Morgan Chase Bank, N.A., and California Reconveyance

7 Company argue this Court lacks subject matter jurisdiction over Plaintiffs case.
8 Plaintiff filed an Opposition.
9
10

11
12
13

A. Federal Ouestion Jurisdiction
District courts have original jurisdiction over civil actions arising "under the
Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
Plaintiffs First Amended Complaint alleges that Defendants violated seven
California state laws. 1 Because the Complaint alleges no federal claims, this Court

14 does not have federal question jurisdiction over this matter.
15

B. Diversity Jurisdiction

16

District courts have original jurisdiction over civil actions where (1) the

17 amount in controversy exceeds $75,000, and (2) there is complete diversity of
18 citizenship. 28 U.S.C. § 1332(a). Complete diversity of citizenship exists where no
19 plaintiff is from the same state as any Defendant. Abrego Abrego v. Dow Chern.

20 Co., 443 F.3d 676,679 (9th Cir. 2006) (citing Exxon Mobil Corp. v. Allapattah
21 Servs., Inc., 545 U.S. 546 (2005».
22
23

Complete diversity does not exist here. Plaintiff alleges that she and her
husband are citizens of California. She alleges that Defendant Larry Burns or

24 Lawrence Burzynski is also a citizen of California. Because at least one plaintiff is
25
IPlaintiffbriefly mentions a criminal statute, 18 U.S.C. § 1001 in attempt to
support her claim that Defendants violated California Penal Cooe § 529. (FAC 19.)
27 Section 1001 is a criminal statute which provides no private right of action. Willems
v. Apartmentlnv. & Mgmt. Co., 72 F. App'x 700,701 {9th Cir. 2'003). In the eventthis
28 mention of section 1001 should be construed as a claim against Defendants, the claim
is dismissed with prejudice.

26

-2-

14cv2883

"

1 a citizen of the same state of at least one defendant, this Court does not have
2 diversity jurisdiction over this case.
3

Plaintiff failed to establish this Court has subject matter jurisdiction over this

4 action. The Court therefore GRANTS Defendants' Motion to Dismiss for Lack of
5 Jurisdiction.

6 II. Plaintiff's Motion for Leave to Amend
7

On February 19,2015, Plaintiff filed an Ex Parte Motion for Leave to File a

8 Second Amended Complaint. (Docket No. 30.) Defendants filed an Opposition.
9

Pursuant to Federal Rule of Civil Procedure 15, courts "should freely give

10 leave when justice so requires."
11

Plaintiff contends that a second amended complaint will enable her to show

12 that this Court has subject matter jurisdiction over this matter. She also claims that
13 "newly discovered evidence" necessitates addition of new claims and the identity of
14 doe defendants.
15

Plaintiff's Motion for Leave to Amend is GRANTED. Plaintiff may add Mr.

16 Kirkeby as co-plaintiff and new claims against Defendants. However, Plaintiff must
17 take care to cure the deficiencies pointed out in this Court's order. The Court also
18 cautions Plaintiff to make her best effort to include all possible claims against all
19 defendants in the Second Amended Complaint.
20
21

Further, as the Court has stated in previous orders, Plaintiff has provided no
reason to file motions without giving notice to Defendants. Any future ex parte

22 motions from Plaintiff will not be accepted.
23
24

CONCLUSION
Finding this Court lacks subject matter jurisdiction to hear this action,

25 Defendants' Motion to Dismiss for Lack of Jurisdiction is GRANTED. Plaintiff's
26 Motion to file a Second Amended Complaint is GRANTED. If Plaintiff believes
27 she can cure the deficiencies in the previous complaints, Plaintiff is ORDERED to
28 file any Second Amended Complaint on or before April 15. 2015. Finally,
-3-

14cv2883

1 Defendants' Motion to Dismiss for failure to state a claim (Docket No. 18) is
2 DENIED as moot. The action is DISMISSED without prejudice. The Clerk may
3 close the case.

4

;

IT IS SO ORDERED.

])"ted''',",~2015

8
9
10
11
12

13

14
15
16

17
18
19

20
21

22
23

24
25

26
27
28
- 4-

14cv2883