Guerrero Villegas v. Wells Fargo Home Mortgage et al

Filing 7

ORDER granting defendant Wells Fargo Bank, N.A.'s 3 Motion to Dismiss; the instant complaint is dismissed without prejudice. Signed by Judge John A. Houston on 7/30/15. (kas)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15

SERGIO GUERRERO VILLEGAS,
v.

Plaintiff,

WELLS FARGO HOME MORTGAGE,
A DIVISION OF WELLS FARGO;
TICOR TITLE COMPANY OF
CALIFORNIA, NBS DEFAULT
SERVICES, LLC; AND DOES 1
THROUGH 10, INCLUSIVE,
Defendants.

16
17

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civil No. 15cv0637 JAH(DHB)
ORDER GRANTING DEFENDANT
MOTION TO DISMISS [Doc. # 5]

INTRODUCTION

18
19

Pending before the Court is the motion to dismiss [Doc. #5] filed by Defendant

20

Wells Fargo Bank, N.A., successor by merger to Wells Fargo Bank Southwest, N.A., f/k/a

21

Wachovia Mortgage, FSB f/k/a World Savings Bank, FSB (“Defendant”). After a careful

22

review of the parties’ submissions, and for the reasons set forth below, this Court

23

GRANTS Defendant’s motion to dismiss.
BACKGROUND

24
25

1.

Factual Background

26

The instant complaint, filed by Sergio Guerrero Villegas (“Plaintiff”), stems from

27

a secured loan made by World Savings Bank, FSB to third party Maria Guadalupe

28

Valenzuela to finance her purchase of a home located at 511 Montera Court, Chula Vista,

15cv0637

1

California 91910. Maria Guadalupe Valenzuela transferred all rights to title and interest

2

in the property to Plaintiff, who eventually defaulted on the loan. As a result of Plaintiff’s

3

default, Defendant initiated foreclosure proceedings by recording a Notice of Default on

4

September 23, 2014. On February 6, 2015 a Notice of Trustee’s Sale was recorded.

5

2.

Procedural Background

6

On February 19, 2015, Plaintiff commenced this action in the San Diego County

7

Superior Court. The case was removed to this Court on March 20, 2015. See Doc. #1.

8

Defendant filed the instant motion to dismiss on March 26, 2015. See Doc. #3. Plaintiff

9

filed an opposition to Defendant’s motion to dismiss on April 28, 2015. See Doc. #4.

10

Defendant filed a reply on May 4, 2015. Doc. #5. This Court subsequently took the

11

motion under submission without oral argument. See CivLR 7.1(d.1).
DISCUSSION

12
13

Defendant moves to dismiss on the grounds that the complaint fails to state a claim

14

upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

15

Instead of opposing the merits of Defendant’s motion to dismiss, Plaintiff contends in

16

opposition that this Court lacks subject matter jurisdiction, which this Court construes as

17

a motion to remand.

18

1.

Motion to Remand

19

a.

Legal Standard

20

The Federal Court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co.

21

v. New York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of

22

any dispute until it confirms it’s own subject matter jurisdiction. Steel Co. v. Citizens for

23

a Better Environ., 118 S.Ct. 1003, 1012 (1998). District courts must construe the removal

24

statutes strictly against removal and resolve any uncertainty as to removability in favor of

25

remanding the case to state court. Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988) .

26

Removal jurisdiction is governed by 28 U.S.C § 1441 et seq. A state court action can only

27

be removed if it could have originally been brought in federal court. Caterpillar, Inc. V.

28

Williams, 482 U.S. 386, 392 (1987).
2

15cv0637

1

Here, Plaintiff’s complaint was removed on diversity grounds. To establish diversity

2

jurisdiction, there must be: (1) complete diversity among opposing parties; and (2) an

3

amount in controversy exceeding $75,000. See 28 U.S.C. § 1332(a). The burden is on the

4

party invoking the federal removal statue to demonstrate federal subject matter

5

jurisdiction over the case. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir.

6

1988)

7

b.

Analysis

8

Plaintiff contends that this Court lacks subject matter jurisdiction over his claims

9

because “1) There is No Complete Diversity such that this Court can exercise diversity

10

jurisdiction, since co-Defendant TICOR TITLE COMPANY OF CALIFORNIA and NBS

11

DEFAULT SERVICES, LLC are California residents, and 2) There is NO Federal Question

12

and the Amount in Controversy DOES NOT exceed $75,00.00.” Doc. # 4 at 2 (emphasis

13

in original). However, Plaintiff provides no argument or evidence supporting his

14

contention, nor does he rebut Defendant’s attestations presented in the Notice of Removal

15

filed in support of jurisdiction. See Doc. #1 at 2.1 Based on the record, this Court finds

16

Defendant has met its burden of demonstrating that subject matter jurisdiction exists, and

17

Plaintiff has failed to rebut that showing. Thus, the Court is now faced with an unopposed

18

motion to dismiss.

19

2.

Motion to Dismiss

20

a. Legal Standard

21

The Ninth Circuit has held that a district court may properly grant a motion to

22

dismiss as unopposed pursuant to a local rule where the local rule permits, but does not

23

require the granting of a motion for failure to respond. See generally, Ghazali v. Moran,

24

46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming dismissal for failure to timely file

25

opposition papers). The Southern District of California’s Civil Local Rule 7.1(f.3.c)

26

expressly provides that “[i]f an opposing party fails to file the papers in the manner

27
The only case cited by Plaintiff in support of his jurisdictional arguments is not
analogous to the instant case. See Doc. # 4 at 2 n.1 (citing Althie v. Wells Fargo civil case
No.3:15-cv-00417-CAB-BGS.)
1

28

3

15cv0637

1

required by Local Rule 7.1(e.2), that failure may constitute a consent to the granting of

2

that motion or other request for ruling by the court.” Prior to dismissal of an unopposed

3

motion, the court must weigh the following factors: “(1) the public’s interest in expeditious

4

resolution of litigation; (2) the court’s need to manage it’s docket; (3) the risk of prejudice

5

to the Defendants; (4) the public policy favoring disposition of cases on their merits; and

6

(5) the availability of less drastic sanctions.” Ghazali, 46 F.3d at 53 (quoting Henderson

7

v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The Ninth Circuit has recognized that

8

the first and fourth factors cut in opposite directions. See Yourish v. California Amplifier,

9

1991 F.3d 983, 990 (9th Cir. 1999) (first factor always weighs in favor of dismissal);

10

Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir. 1998) (fourth factor counsels

11

against dismissal). Thus, this Court will address the second, third and fifth factors in

12

determining whether it should grant Defendant’s unopposed motion.

13

b. Analysis

14

After a review of the record, this Court finds that the second factor weighs in favor

15

of dismissal. As the court noted in Yourish, the routine noncompliance of litigants should

16

not prevent the court from managing its docket. Yourish, 191 F. 3d 990. Plaintiff has

17

failed to comply with one of the most basic requirements of litigation, and to date has

18

offered no excuse for failing to respond to Defendant’s motion to dismiss. The fact that

19

Plaintiff has yet to make any attempt to address the motion to dismiss also supports a

20

finding of prejudice towards Plaintiff, and weighs in favor of dismissal. Finally, with

21

respect to whether less drastic measures have been considered, in the interest of lessening

22

the sanction imposed on Plaintiff, the Court will grant Defendant’s motion to dismiss

23

without prejudice.

24

//

25

//

26

//

27

//

28

//

4

15cv0637

CONCLUSION AND ORDER

1
2

Based on the foregoing, IT IS HEREBY ORDERED that Defendant Wells Fargo

3

Bank, N.A.,’s motion to dismiss is GRANTED and the instant complaint is DISMISSED

4

WITHOUT PREJUDICE.

5
6

Dated: July 30, 2015

7

JOHN A. HOUSTON
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5

15cv0637