The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Presently before the court*fn1 are: (1) a motion to dismiss plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendant T.D. Service Company (Dkt. No. 21); (2) a motion to dismiss plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendants Fremont Bank and Federal National Mortgage Association (Dkt. No. 25); and (3) a "motion to dismiss" plaintiff's First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(h)(3) and 12(c) filed by defendant United States of America (Dkt. No. 56). Although styled a "motion to dismiss," the motion filed by the United States of America ("United States") is more accurately characterized as a motion to dismiss for lack of jurisdiction and a motion for judgment on the pleadings because the United States already filed an answer to plaintiff's First Amended Complaint (Dkt. No. 24).*fn2 See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (per curiam).
On November 18, 2010, the undesigned conducted a hearing on the motions to dismiss filed by T.D. Service Company, Fremont Bank, and Federal National Mortgage Association (collectively, the "Financial Defendants"). (Dkt. No. 66.) The Financial Defendants were represented by their respective counsel via telephone. Plaintiff appeared in person and on his own behalf. Assistant United States Jason Ehrlinspiel appeared at the November 18th hearing on behalf of the United States, and plaintiff's objection to the presence of Mr. Ehrlinspiel at the hearing was noted on the record. That objection is overruled because the United States had a right to have its counsel present at the hearing on other parties' motions to dismiss, which was, in any event, a public hearing. The motion filed by the United States was set for hearing on December 9, 2010, and the undersigned submitted that motion on the briefs and record in this case (Dkt. No. 76). See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). Having reviewed the briefs and record in this case and having considered the parties' respective arguments, the undersigned recommends that plaintiff's First Amended Complaint be dismissed with prejudice.
As explained below in the sub-section addressing the procedural history in this case, plaintiff's First Amended Complaint (Dkt. No. 20) is the operative pleading in this action. The factual allegations in the First Amended Complaint appear under "headers" that denote each of plaintiff's eight claims for relief. Thus, this factual summary generally proceeds claim-by-claim, instead of in a temporal narrative fashion.
In the First Amended Complaint, plaintiff alleges that he was an Air Traffic Control Specialist at the Oakland Air Route Traffic Control Center and was "removed from his position by a FAA/DOT supervisor . . . for what has been described in part, as a mental state problem." (First Am. Comp. ¶ 6.) Plaintiff alleges that he was "broken down" and subsequently deemed to be "medically incapacitated" and, therefore, not entitled to a medical clearance by "the FAA/DOT Western Pacific Regional Flight surgeon . . . and [the] ZOA Air Traffic Manager." (Id. ¶ 7.) Plaintiff was required to have a medical clearance to perform his job. (Id.) Plaintiff further alleges that he was forced against his will "seek and obtain evaluations and treatment from psychiatric physicians and others." (Id.) He alleges that he complied "to the extent practicable," but refused to disclose "certain information." (Id. ¶¶ 7-8.) In regards to his refusal to provide certain information, plaintiff maintains that: (1) he had a "duty" not to disclose certain information; (2) the FAA/DOT Western Pacific Regional Flight Surgeon and the ZOA Air Traffic Manager "have a duty not to disclose or force others to disclose information that violates, minimally, 5 U.S.C. § 2302(b)(8)";*fn3 and (3) the ZOA Air Traffic Manager has indicated "that certain information should not be disclosed." (See id. ¶¶ 9, 10, 12.) Plaintiff's refusal to make disclosures allegedly resulted in the flight surgeon concluding that plaintiff's therapy was "not meaningful" and, ultimately, in plaintiff's termination from employment for failure to maintain a medical clearance. (See id. ¶¶ 8, 11.)
The allegations summarized above are contained in the section of the First Amended Complaint addressing plaintiff's claim pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., which is asserted only against the United States in connection with plaintiff's termination from employment and alleged intentional infliction of emotional distress. Notably, plaintiff affirmatively states in his opposition briefs that he is not alleging a wrongful termination claim. (Pl.'s Opp'n to Fin. Defs.' Mots. to Dismiss at 4:5-7 (stating that plaintiff "has not filed a cause of action for wrongful termination and does not know how it applies to this case, if at all."), Dkt. No. 58; Pl.'s Opp'n to United States's Mot. to Dismiss at 6 ("[Plaintiff] has not filed a claim for wrongful termination."), Dkt. No. 63.)
The remaining seven claims in the First Amended Complaint are asserted against "all defendants"-without any distinction as to which alleged wrongful acts were committed by which defendant-and relate to the foreclosure and completed trustee's sale of plaintiff's home.
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or A notice of default was recorded as to plaintiffs's family home on November 13, 2009, and a trustee's sale was scheduled for June 16, 2010. (First Am. Compl. ¶ 3.) Plaintiff alleges that the trustee's sale occurred on July 13, 2010. (See id. ¶¶ 36, 45.)
Plaintiff's second claim for relief seeks to quiet title in the property located at 2650 Leaning Tree Road, Placerville, CA 95667. (See id. ¶¶ 16-23.) Plaintiff alleges that he and his wife applied for a "Government Home Affordable Program (HAMP) home loan modification through Fremont Bank . . . toward the end of 2009" and that Fremont Bank offered plaintiff and his wife a HAMP loan modification in the beginning of 2010, but that plaintiff and his wife could not afford the modification.*fn4 (Id. ¶¶ 21-22.) Plaintiff alleges that the foreclosure and sale of the subject property was "brought about by the wrongful acts and omissions of the Defendants." (Id. ¶ 23.)
In his third claim for relief, plaintiff seeks to enjoin the foreclosure and trustee's sale of the subject property. (Id. ¶¶ 24-34.) Plaintiff alleges that T.D. Service Co., Fremont Bank, and Federal National Mortgage Association recorded a notice of default on November 13, 2009, and noticed a trustee's sale for June 16, 2010. (Id. ¶¶ 31-32 & Exs. B, C.) Plaintiff disputes the breach that brought about the default on the grounds that the wrongful acts or omissions of "the defendants" brought it about. (Id. ¶ 34.) However, as noted above, plaintiff alleges that the trustee's sale already took place on July 13, 2010. (Id. ¶¶ 36, 45.)
Plaintiff's fourth claim for relief seeks recovery for "negligence per se." (First Am. Compl. ¶¶ 35-42.) This claim is premised on the acts and omissions of defendants, allegedly acting under the authority of the Secretary of the Department of Housing and Urban Development, which resulted in a wrongful foreclosure. (See id. ¶¶ 36-38.) This claim asserts that T.D. Service Company offered plaintiff what amounted to a release of liability in exchange for a non-monetary resolution of the foreclosure action, and that this act (and possibly others) violated California Civil Code § 2924l*fn5 and California Business and Professions Code § 17200, and were thus "negligent as a matter of law." (See First Am. Compl. ¶¶ 38-41.) Plaintiff does not allege the precise nature of any such violation and does not separately seek relief for the actual violations of these statutes-his claim is limited to a negligence claim under a negligence per se theory.
Plaintiff's fifth claim alleges an additional claim for "negligence
per se." (First Am. Compl. ¶¶ 43-48.) This claim generally alleges
that T.D. Service Co., Fremont Bank, and Federal National Mortgage
Association were negligent by violating the following: "28 U.S.C. §
2409a,*fn6 the National Housing Act,*fn7
TILA,*fn8 RESPA,*fn9 the
Federal Housing Enterprise Financial Safety and Soundness Act,*fn10 contractual duties . .
. pertaining to loans, codes of conduct, . . . and other applicable
laws." (First Am. Compl. ¶ 47.) Specifically, plaintiff contends that
he was deprived of disclosures regarding "appraisal, evaluation, and
reports on multiple loan transactions during the initiation of the
loan in default, qualified written requests pursuant to 12 U.S.C. §
2605, [and] loan insurance." (First Am. Compl. ¶ 47.) He does not
specify which acts or omissions violated which particular statute
other than the violation of 12 U.S.C. § 2605. Plaintiff also vaguely
alleges that these defendants made misrepresentations and charged or
attempted to charge excessive fees, and that "some all of these acts
and/or omissions" were not known to plaintiff until the notice of
default was recorded. Again, however, plaintiff styles this claim as
one for negligence, not claims for violations of these particular
statutes, breach of contract, or fraud.
Plaintiff's sixth claim for relief alleges a claim for "wrongful foreclosure." (First Am. Compl. ¶¶ 49-57.) Plaintiff generally alleges that the trustee's sale of his property was "wrongful for numerous reasons, including those which have already been stated herein." (Id. ¶ 50.) However, he also alleges that the trustee's sale violated 28 U.S.C. § 2409a, but does not explain the nature of the violation.
Plaintiff's seventh claim is one for "cancellation of instrument," resulting from the alleged wrongful foreclosure and trustee's sale. (First Am. Compl. ¶¶ 58-61.) This claim is, in essence, seeking relief that is derivative of plaintiff's wrongful foreclosure claim.
Finally, plaintiff's eighth claim for relief seeks the imposition of a constructive trust. (Id. ¶¶ 62-64.) Again, this request for a constructive trust is a form of relief and is derivative of plaintiff's other claims.
This case has a rather twisted procedural history. Accordingly, it is recounted here in some detail.
On June 14, 2010, plaintiff filed his original complaint in this action (Dkt. No. 1), which was prior to the occurrence of the trustee's sale of plaintiff's home. At no time did plaintiff seek a temporary restraining order or preliminary injunction from the court to stave off the trustee's sale. Defendants T.D. Service Company and Fremont Bank filed separate motions to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. Nos. 13, 17.)
In response to T.D. Service Company's and Fremont Bank's respective motions to dismiss, and prior to the hearing and resolution of those motions, plaintiff filed, on July 28, 2010, a First Amended Complaint. (Dkt. No. 20.) Plaintiff properly filed his First Amended Complaint "as a matter of course" pursuant to Federal Rule of Civil Procedure 15(a)(1)(B).
T.D. Service Company moved to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 21.) Defendants Fremont Bank and Federal National Mortgage Association also moved to dismiss the First Amended Complaint pursuant to Rule 12(b)(6). (Dkt. No. 25.) In the interest of judicial economy, the court reset the hearings on those motions to dismiss for October 7, 2010, with the intention of hearing those motions together. (Dkt. No. 26.) Meanwhile, defendant United States filed an answer to the First Amended Complaint. (Dkt. No. 24.)
On September 9, 2010, plaintiff filed a "Second First Amended Complaint" in this matter, which will be referred to as the Second Amended Complaint. (Dkt. No. 27.) The court's docket does not indicate that plaintiff sought the other parties' written consent or leave to amend from the court, as required by Federal Rule of Civil Procedure 15(a)(2). The Second Amended Complaint attempted to add three additional FTCA claims against the United States. Despite plaintiff's failure to seek leave to amend, T.D. Service Company filed a motion to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6), and the United States filed an answer to the Second Amended Complaint. (Dkt. Nos. 29, 31.)
On September 21, 2010, plaintiff filed a "Third First Amended Complaint," which will be referred to as the Third Amended Complaint. (Dkt. No. 32.) Again, the court's docket does not indicate that plaintiff sought the other parties' written consent or leave to amend from the court prior to filing the Third Amended Complaint. The Third Amended Complaint again attempted to add three additional FTCA claims against the United States and a claim of the deprivation of constitutional rights, apparently pursuant to 42 U.S.C. § 1983, against Fremont Bank and Federal National Mortgage Association.
Curiously, on September 21, 2010, plaintiff also filed a written opposition to T.D. Service Company's motion to dismiss plaintiff's First Amended Complaint. (Dkt. No. 33.) Then, on September 23, 2010, T.D. Service Company filed a motion to dismiss plaintiff's Third Amended Complaint pursuant to Rule 12(b)(6). (Dkt. No. 44.) Fremont Bank, Federal National Mortgage Association, and the United States did not respond to the Third Amended Complaint.
On September 29, 2010, plaintiff filed a document entitled "Plaintiff's Objection to Assertions of Second Or Third Amended Complaint." (Dkt. No. 46.) In that submission, plaintiff states the following:
This notice is to inform that plaintiff objects to any party that has asserted a SECOND or THIRD AMENDED COMPLAINT made by plaintiff because plaintiff has not filed a SECOND or THIRD AMENDED COMPLAINT up to this date for this case.
(Id.) Plaintiff's statement is contradicted by the court's docket in this case. It appears that plaintiff believed that his "Second First Amended Complaint" and "Third First Amended Complaint" were not attempts to amend his pleading. It is uncertain what purpose those later-filed pleadings served other than attempts to amend plaintiff's pleadings.
As reflected in an order entered October 1, 2010, the undersigned concluded that plaintiff exhausted his single amendment as a matter of course when he filed his First Amended Complaint. Accordingly, the court struck: (1) plaintiff's "Second First Amended Complaint";
(2) the United States's answer to the Second Amended Complaint; and (3) plaintiff's "Third First 9 Amended Complaint." (Dkt. No. 51.) The court also ordered that it would consider the motions to dismiss the First Amended Complaint filed by T.D. Service Company, Fremont Bank, and Federal National Mortgage Association on November 18, 2010.
In its October 1, 2010 order, the court also advised plaintiff that he could seek leave to amend the First Amended Complaint. Plaintiff did not do so. However, on October 7, 2010, plaintiff filed objections to the undersigned's October 1, 2010 order, and sought reconsideration of that order by the United States District Judge assigned to this matter. (Dkt. No. 53.) United States District Judge John A. Mendez denied plaintiff's motion for reconsideration. (Dkt. No. 68.)
As noted above, the undersigned heard the Financial Defendants' motions to dismiss on November 18, 2010. Having concluded that plaintiff's First Amended Complaint was subject to dismissal prior to the hearing, the undersigned held the hearing only to ascertain whether there was any reason to permit plaintiff to further amend his complaint. In this regard, the undersigned attempted to ask plaintiff several questions about plaintiff's ability to amend his complaint. However, plaintiff reacted hostilely to the court's questions and repeatedly declined or refused to answer the court's questions.*fn11 As stated above, the undersigned submitted the United States's motion.
A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(h)(3) challenges the court's subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction," and "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citations and quotation marks omitted); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the court takes the allegations in the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, the court is not restricted to the face of the pleadings and "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ("A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence."). "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Communities for a Better Env't., 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), abrogated on other grounds by Hertz Corp v. Friend, 130 S. Ct. 1181 (2010); see also Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009) ("In support of a motion to dismiss under Rule 12(b)(1), the moving party may submit 'affidavits or any other evidence properly before the court . . . . It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." (citation omitted, modification in original)).
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).
"A judgment on the pleadings is properly granted when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law." Ventress v. Japan Airlines, 603 F.3d 676, 681 (9th Cir. 2010) (citation and quotation marks omitted). Where a motion for judgment on the pleadings is used to raise the defense of failure to state a claim, the motion "faces the same test as a motion under Rule 12(b)(6)." McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). "When considering a motion for judgment on the pleadings, [the] court may consider facts that are contained in materials ...