Gallegos v. Nationstar Mortgage, LLC et al

Filing 12

ORDER Plaintiffs Motion for Preliminary Injunction ECF No. 3 is DENIED WITHOUT PREJUDICE; Plaintiffs Motion for Restraining Order ECF No. 7 is DENIED WITHOUT PREJUDICE; Plaintiffs 1 Complaint is DISMISSED WITHOUT PREJUDICE for failure to p led sufficient facts showing that this Court has subject matter jurisdiction; and Plaintiff is granted leave to file an amended complaint that establishes this Courts jurisdiction and complies with all requirements of the Federal Rules of Civil Procedure. Any such amended complaint must be filed by January 30, 2013 or this action will closed, by Judge William J. Martinez on 1/8/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-0035-WJM-CBS
GERALD R. GALLEGOS,
Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, a Texas corporation,
DEUTSCHE BANK, as Trustee for the other RALI SERIES 2007-QH9 TRUST,
DOUGLAS COUNTY PUBLIC TRUSTEE,
MORTGAGE ELECTRONIC REGISTRATION SYSTEM (MERS), a Delaware
corporation
Defendants.

ORDER SUA SPONTE DISMISSING COMPLAINT WITH LEAVE TO AMEND AND
DENYING PLAINTIFF’S MOTION FOR RESTRAINING ORDER

On January 7, 2013, Plaintiff Gerald Gallegos filed this action against
Defendants Nationstar Mortgage, LLC, Deutsche Bank, as Trustee for the other RALI
Series 2007-QH9 Trust, Douglas County Public Trustee, and Mortgage Electronic
Registration System (“MERS”). (Compl. (ECF No. 1).) Plaintiff’s Complaint brings the
following causes of action: (1) a complete adjudication of his rights pursuant to
Colorado Rule of Civil Procedure 105; (2) a claim for declaratory relief under Colorado
Revised Statute § 13-51-106 and Colorado Rule of Civil Procedure 57; (3) common law
breach of the duty of good faith and fair dealing; (4) common law promissory estoppel;
and (5) common law constructive fraud. (Id. at pp. 9-10.)
I. SUBJECT MATTER JURISDICTION
Federal courts are courts of limited jurisdiction, and there is a presumption

against the exercise of federal jurisdiction. Merida Delgado v. Gonzales, 428 F.3d 916,
919 (10th Cir. 2005); Penteco Corp. Ltd. Partnership-1985A v. Union Gas System, Inc.,
929 F.2d 1519, 1521 (10th Cir. 1991). As the party invoking the jurisdiction of this
Court, Plaintiff has the burden to allege jurisdictional facts demonstrating the presence
of federal subject matter jurisdiction. McNutt v. General Motors Acceptance Corp. of
Indiana, Inc., 298 U.S. 178, 182 (1936) (“It is incumbent upon the plaintiff properly to
allege the jurisdictional facts, according to the nature of the case.”); Montoya v. Chao,
296 F.3d 952, 955 (10th Cir. 2002) (“The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.”).
The Court has an obligation to consider whether subject matter jurisdiction
exists, even if the parties have not raised the issue. Image Software, Inc. v. Reynolds &
Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (“[f]ederal courts ‘have an
independent obligation to determine whether subject-matter jurisdiction exists, even in
the absence of a challenge from any party,’ and thus a court may sua sponte raise the
question of whether there is subject matter jurisdiction ‘at any stage in the litigation.’“).
“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
Plaintiff is proceeding pro se and, therefore, the Court must liberally construe his
pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, despite his pro
se status, he still must comply with the fundamental requirements of the Federal Rules
of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Federal
Rule of Civil Procedure 8(a) requires that a complaint contain “a short plain statement

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of the grounds for the court’s jurisdiction.” Plaintiff’s Complaint does not satisfy this
requirement. There is no indication as to how this Federal Court has jurisdiction over
Plaintiff’s claims. This failure alone is sufficient grounds to dismiss the Complaint. Fed.
R. Civ. P. 12(h)(3).
However, in the interests of justice, the Court has reviewed the Complaint in an
attempt to discern whether it contains sufficient facts to permit the Court to determine
that it has subject matter jurisdiction over this case. Plaintiff’s causes of action all
involve state law or invoke Colorado state statutes. (Compl. pp. 9-10.) There is no
federal statute pled or other indication of a federal interest at stake in this case.
Therefore, the Court does not have federal question jurisdiction pursuant to 28 U.S.C. §
1331. Moreover, Plaintiff appears to be a citizen of Colorado and at least one of the
Defendants—Douglas County Public Trustee—is also a citizen of Colorado. Thus,
there is not complete diversity between the parties and the Court does not have
jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
It is clear that, in its current iteration, Plaintiff’s Complaint fails to state sufficient
facts to meet his burden of establishing that this Court has subject-matter jurisdiction
over his claims. Accordingly, the Court must dismiss Plaintiff’s Complaint. See Fed. R.
Civ. P. 12(h)(3).
II. MOTION FOR RESTRAINING ORDER
At the same time he filed the Complaint, Plaintiff filed a Motion for Preliminary
Injunction asking that Defendants “be enjoined from conducting a foreclosure sale of
the property located at 10657 Brown Fox Trail Littleton, Colorado 80125, County of
Douglas, State of Colorado until a trial on the merits.” (ECF No. 3.) On January 8,
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2013, Plaintiff filed a Motion for Restraining Order asking the Court to enjoin the sale of
his property currently scheduled for 10:00 a.m. on January 9, 2013. (ECF No. 7.)
Before the Court can take any action on a case, it must have subject matter
jurisdiction over the matter. See Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202
(10th Cir. 1986). As set forth above, Plaintiff has failed to establish that the Court has
subject matter jurisdiction over his claims. Thus, the Court lacks the ability to enter the
injunctive relief that Plaintiff seeks in both his Motion for Temporary Restraining Order
and his Motion for Preliminary Injunction.
Additionally, Plaintiff asks the Court to intervene in an ongoing state proceeding,
i.e., the sale of his property by the Public Trustee. However, a federal court is barred
from intervening in ongoing state court proceedings. Younger v. Harris, 401 U.S. 37, 44
(1971). This is an alternate basis for why the Court cannot grant Plaintiff the injunctive
relief he seeks.
III. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Motion for Preliminary Injunction (ECF No. 3) is DENIED WITHOUT
PREJUDICE;

2.

Plaintiff’s Motion for Restraining Order (ECF No. 7) is DENIED WITHOUT
PREJUDICE;

3.

Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE for failure to pled
sufficient facts showing that this Court has subject matter jurisdiction; and

4.

Plaintiff is granted leave to file an amended complaint that establishes this

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Court’s jurisdiction and complies with all requirements of the Federal Rules of
Civil Procedure. Any such amended complaint must be filed by January 30,
2013 or this action will closed.

Dated this 8th day of January, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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