Santiago-Otero v. Banco Popular de Puerto Rico et al
Filing
30
OPINION AND ORDER granting 6 Motion to Dismiss. Plaintiff's claims are hereby dismissed without prejudice. Final judgment shall be thus entered. Signed by Judge Juan M Perez-Gimenez on 07/18/2011. (PMA)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
NANCY SANTIAGO OTERO,
Plaintiff,
v.
CIV. NO. 10-2094 (PG)
BANCO POPULAR DE PUERTO RICO,
BANCO POPULAR MORTGAGE SERVICING
DIVISION, PRESIDENTE OF THE BOARD
OF DIRECTORS OF BANCO POPULAR
MORTGAGE SERVICING DIVISION,
RESIDENT AGENT OF THE BANCO
POPULAR MORTGAGE SERVICING
DIVISION. INSURANCE COMPANIES
A, B, AND C,
Defendants.
OPINION AND ORDER
Pending before the Court is defendants’ Banco Popular de Puerto
Rico, Popular Mortgage, Inc., and Chairman of the Board of Directors of
Banco Popular de Puerto Rico’s motions to dismiss under Federal Rule of
Civil Procedure 12(b)(1) for lack of subject matter jurisdiction (Docket
No. 6, 13) and plaintiff Nancy Santiago Otero’s opposition thereto
(Docket No. 14). For the reasons set forth below, the Court GRANTS the
defendants’ request.
I. BACKGROUND
On November 8, 2011, plaintiff Nancy Santiago-Otero (“Plaintiff” or
“Santiago-Otero”) filed the above-captioned claim against Banco Popular
de Puerto Rico (“BPPR”), Popular Mortgage, Inc. (“PMI”), and President of
the Board of Directors of Banco Popular de Puerto Rico (hereinafter
collectively referred to as “Defendants”) requesting relief under “The
Banks Laws” (12 U.S.C. §§ 371(a), 1707, 1708, 1724, 1841), the “Federal
Housing Administration Laws”, and “damages and contracts law.” See
Complaint, Docket No. 1.
Plaintiff alleges in her complaint that in March 2010 she bought an
apartment at Condominio Torre Alta, 274 Uruguay Street, San Juan Puerto
Civil No. 10-2094 (PG)
Page 2
Rico and Westernbank of Puerto Rico (“Westernbank”) granted the mortgage
loan for the apartment. Plaintiff alleges that the loan was a Federal
Housing Administration loan and that mortgage payments started in May
2010. Plaintiff further alleges that the first payment was of $595.59 and
the following eleven payments of $529.06. Also, she claims that the
payments were to remain at $529.06 until April 2040. See Docket No. 1,
at ¶ 2.
Plaintiff states that when BPPR bought Westernbank in 2010 the
mortgage was transferred to BPPR, a banking institution organized and
existing under the laws of Puerto Rico. Plaintiff alleges that BPPR sent
a payment book for a monthly payment of $595.59, which she states is
incorrect because her mortgage loan is a fixed term and rate loan.
Plaintiff further alleges that BPPR raised the amount of the payments
from $529.06 to $595.59 without her consent or knowledge. Plaintiff
claims that the correct amounts of her payments should be $529.06 and she
initiated this action seeking that BPPR change the amount of the monthly
payments. Plaintiff further alleges that this situation has created
emotional pressure and economic problems, and requests redress for the
damages suffered in the amount of $500,000.
In their answer, Defendants filed the present motion requesting
that Plaintiff’s claims against them be dismissed for lack of subject
matter jurisdiction and failure to state a claim upon which relief can be
granted. See Docket No. 6.
II. STANDARD OF REVIEW
Motions to dismiss brought under FED.R.CIV.P. 12(b)(1) and 12(b)(6)
are subject to the same standard of review. See Negron-Gaztambide v.
Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994). Firstly, when ruling on
a motion to dismiss for failure to state a claim, a district court “must
accept as true the well-pleaded factual allegations of the complaint,
draw all reasonable inferences therefrom in the plaintiff’s favor, and
determine whether the complaint, so read, limns facts sufficient to
justify recovery on any cognizable theory.” Rivera v. Centro Medico de
Turabo, Inc., 575 F.3d 10, 15 (1st Cir.2009) (citing LaChapelle v.
Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.1998)). Additionally,
courts “may augment the facts in the complaint by reference to (i)
Civil No. 10-2094 (PG)
Page 3
documents annexed to the complaint or fairly incorporated into it, and
(ii) matters susceptible to judicial notice.” Gagliardi v. Sullivan, 513
F.3d 301, 306 (1st Cir.2008) (internal citations and quotation marks
omitted).
In determining whether dismissal of a complaint is appropriate
pursuant to Rule 12(b)(1) or 12(b)(6), the court must keep in mind that
“[t]he general rules of pleading require a short and plain statement of
the claim showing that the pleader is entitled to relief. … This short
and plain statement need only give the defendant fair notice of what the
… claim is and the grounds upon which it rests.” Gargano v. Liberty
Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st Cir.2009) (internal
citations and quotation marks omitted). Nevertheless, “even under the
liberal pleading standard of Federal Rule of Civil Procedure 8, the
Supreme Court has … held that to survive a motion to dismiss, a complaint
must allege a plausible entitlement to relief.” Rodriguez-Ortiz v. Margo
Caribe, Inc., 490 F.3d 92, 95 (1st Cir.2007) (citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly,
550 U.S. at 556). That is, “[f]actual allegations must be enough to raise
a right to relief above the speculative level, … , on the assumption that
all the allegations in the complaint are true (even if doubtful in
fact)….” Twombly, 550 U.S. at 555 (internal citations and quotation marks
omitted). “Determining whether a complaint states a plausible claim for
relief will … be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Iqbal, 129
S.Ct. at 1950.
“In resolving a motion to dismiss, a court should employ a
two-pronged approach. It should begin by identifying and disregarding
statements in the complaint that merely offer legal conclusions couched
as fact or threadbare recitals of the elements of a cause of action.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d at 9 (1st Cir. April 1,
2011) (citing Twombly, 550 U.S. at 555) (internal quotation marks
omitted). Although a complaint attacked by a motion to dismiss pursuant
Civil No. 10-2094 (PG)
Page 4
to Federal Rule of Civil Procedure 12(b)(6) “does not need detailed
factual allegations, … , a plaintiff’s obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not
do … .” Twombly, 550 U.S. at 555 (internal citations and quotation marks
omitted). That is, the court “need not accept as true legal conclusions
from the complaint or naked assertions devoid of further factual
enhancement.” Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir.2009)
(citing Iqbal, 129 S.Ct. at 1960). “Non-conclusory factual allegations in
the complaint must then be treated as true, even if seemingly
incredible.” Ocasio-Hernandez, 640 F.3d at 9 (citing Iqbal, 129 S.Ct. at
1951).
When evaluating the plausibility of a legal claim, a court may not
“attempt to forecast a plaintiff’s likelihood of success on the merits; a
well-pleaded complaint may proceed even if … a recovery is very remote
and unlikely.” Ocasio-Hernandez, 640 F.3d at 9 (citing Twombly, 550 U.S.
at 556). Thus, “[t]he relevant inquiry focuses on the reasonableness of
the inference of liability that the plaintiff is asking the court to draw
from the facts alleged in the complaint.” Ocasio-Hernandez, 640 F.3d at
9.
III. DISCUSSION
Defendants contend that Plaintiff’s complaint is facially deficient
under Federal Rule of Civil Procedure 8 for failure to state a claim upon
which relief can be granted and failure to plead federal jurisdiction.
See Docket No. 6.
Federal courts are courts of limited jurisdiction. Pursuant to Rule
12(b)(1), a defendant may move to dismiss an action for lack of subject
matter jurisdiction. “Motions under Rule 12(b)(1) are brought forth to
attack two different types of defects: the pleader’s failure to comply
with Rule 8(a)(1), and the Court’s actual lack of subject matter
jurisdiction-which may exist despite the formal sufficiency of the
allegations in the complaint.” Torres Vazquez v. Commercial Union Ins.
Co., 417 F.Supp.2d 227, 236 (D.P.R.2006). A party that seeks the
jurisdiction of the federal courts has the burden of demonstrating its
existence. See Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995).
Civil No. 10-2094 (PG)
Page 5
In a non-diversity case, federal district courts have jurisdiction
over cases “arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. To satisfy federal question
jurisdiction, a federal question “must appear on the face of a wellpleaded complaint.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S.
480, 494 (1983). See also Holguin Soto v. Rodham-Clinton, 609 F.Supp.2d
207, 210 (D.P.R.2009). In addition, “it is up to the plaintiff in a
federal case to point this law out; otherwise the Court is powerless to
act... It is not enough for [the plaintiff] to say he has been wronged;
he must point to the laws that give the federal court the power to act in
his case.” Orlowski v. Massachusetts Rehab. Comm’n, 585 F.Supp. 1408,
1409 (D. Mass.1984).
It is well settled that the complaint in an action arising under a
federal law must specifically disclose the statute involved. Firstly,
Plaintiff’s complaint does not refer to a violation of the Constitution
or treaty. Furthermore, there is no reference to a federal statute that
gives this Court jurisdiction over this matter. Plaintiff only mentions
federal statutes under “The Banks Laws,” the “Federal Housing
Administration Laws,” and “damages and contracts laws” which do not give
this Court jurisdiction. See Complaint Docket No. 1, at ¶ 1.
In her complaint, the Plaintiff fails to specifically assert the
basis that allows the court to exert jurisdiction over this case. By
doing so, it so seems that the Plaintiff pretends that this court engage
in a scavenger hunt of all the available laws and statutes that would
give her case any foundation, when according to the rules that is
Plaintiff’s job in the first place.
Moreover, a plaintiff’s complaint needs to include a short and
plain statement of the claim showing that the pleader is entitled to
relief and stating the grounds upon which this Court’s jurisdiction
depends. Gargano, 572 F.3d at 48; see also FED.R.CIV.P. 8(a). Under this
standard, Plaintiff’s complaint fails to include such a statement showing
entitlement to relief and this Court’s jurisdiction over the suit. “Even
under the liberal pleading standard” of Rule 8, Plaintiff’s complaint
fails to properly set forth her claim of federal question jurisdiction.
See Rodriguez-Ortiz, 490 F.3d at 95. Plaintiff’s general reference to
Civil No. 10-2094 (PG)
Page 6
federal laws simply will not do.
After a review of the complaint, this Court concurs with Defendants
that there is no federal question jurisdiction pursuant to 28 U.S.C.
§ 1331 because the facts of the case, as alleged, simply are not covered
by any of the plead federal statutes. Therefore, Plaintiff’s complaint
fails to state a plausible claim for relief and thus withstand
Defendants’ motion to dismiss.
Finally, even if Plaintiff had brought suit pursuant to 28 U.S.C.
§ 1332(a)(1)1, as Defendants argue, this Court still lacks subject matter
jurisdiction. As stated before, federal courts are courts of limited
jurisdiction. “Federal courts have jurisdiction over controversies
arising between ‘citizens of different states,’ provided that the amount
in controversy exceeds $75,000.” Garcia Perez v. Santaella, 364 F.3d 348,
350 (1st Cir.2004); see also 28 U.S.C. § 1332(a)(1). Diversity
jurisdiction requires complete diversity between all plaintiffs and
defendants. See Casas Office Machines v. Mita Copystar America, Inc.,
42 F.3d 668, 673 (1st Cir.1994). The Plaintiff in this case is a citizen
of the Commonwealth of Puerto Rico. The Defendants are a banking
institution and a corporation having its principal place of business in
Puerto Rico, thus making them citizens of the Commonwealth of Puerto
Rico. Therefore, because both parties are citizens of the same state,
there can be no diversity jurisdiction. Accordingly, this Court lacks
subject matter jurisdiction over Plaintiff’s case.
IV. CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss
(Docket No. 6) is hereby GRANTED. Plaintiffs’ suit is hereby DISMISSED
WITHOUT PREJUDICE.
1
§ 1332(a)(1). Diversity of Citizenship. “The district courts
shall have original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between; (1) citizens of different
States...”
Civil No. 10-2094 (PG)
Page 7
IT IS SO ORDERED.
In San Juan, Puerto Rico, July 18, 2011.
S/ JUAN M. PEREZ-GIMENEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE
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