Gallegos v. Nationstar Mortgage, LLC et al

Filing 13

ORDER that this action be closed. The Clerk shall enter judgment dismissing Plaintiff's Complaint without prejudice for lack of subject matter jurisdiction and failure to prosecute, by Judge William J. Martinez on 2/11/2013. (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 DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION
AND FAILURE TO PROSECUTE

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 brought 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.) Plaintiff also filed a Motion for
Temporary Retraining Order at the time he filed his Complaint. (ECF No. 7.)

On February 8, 2013, the Court sua sponte dismissed Plaintiff’s Complaint for
failure to plead sufficient facts showing that this Federal Court has jurisdiction over his
property dispute. (ECF No. 12.) The Court also denied Plaintiff’s Motion for Temporary
Restraining Order because jurisdiction had not been established. (Id.) The Court
granted Plaintiff leave to “file an amended complaint that establishes this Court’s
jurisdiction and complies with all requirements of the Federal Rules of Civil Procedure.”
(Id.) Such amended complaint was due not later than January 30, 2013. (Id.) Plaintiff
was warned that failure to file an amended complaint by January 30, 2013 would result
in this action being closed. (Id.)
To date, nearly two weeks after Plaintiff’s deadline, no amended complaint has
been filed. As such, there is no operative pleading in this case and there are no facts
from which the Court could find that it has jurisdiction over this action. Accordingly, the
Court finds that Plaintiff has failed to diligently prosecute this action and that it should
be closed. See S.E.C. v. Power Resources Corp., 495 F.2d 297 (10th Cir. 1974) (trial
court has broad discretion to dismiss action for failure to prosecute).
For the reasons set forth above, the Court ORDERS that this action be closed.
The Clerk shall enter judgment dismissing Plaintiff’s Complaint without prejudice for
lack of subject matter jurisdiction and failure to prosecute.
Dated this 11th day of February, 2013.
BY THE COURT:

William J. Martínez
United States District Judge
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