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Justin Siemonsma and Bernadine Bachelor v. Mutual Diversified Employees Federal Credit Union

April 19, 2011

JUSTIN SIEMONSMA AND BERNADINE BACHELOR
v.
MUTUAL DIVERSIFIED EMPLOYEES FEDERAL CREDIT UNION, ET AL



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Title:

Julie Barrera Not Present Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT NATIONAL CREDIT UNION ADMINISTRATION BOARD'S MOTION TO DISMISS

Before the Court is Defendant Mutual Diversified Employees Federal Credit Union ("Credit Union")'s, acting through Liquidating Agent National Credit Union Administration Board ("NCUA"), Motion to Dismiss ("Motion") the First, Second, Third, Fourth, and Sixth Causes of Action (Docket 21). The Court finds this matter appropriate for decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. After considering the moving, opposing, and replying papers, the Court hereby GRANTS IN PART AND DENIES IN PART the Motion and grants LEAVE TO AMEND.

I. Background

Plaintiff Bernadine Bachelor ("Bachelor")is an elderly woman who suffers from Alzeimers Disease. Over a period of years, Bachelor invested money in various accounts at Credit Union through which she established a joint account with her grandson, Plaintiff Justin Siemonsma ("Siemonsma"). Bachelor deposited $10,000 a year into the account for Siemonsma. She also requested that Siemonsma help her in managing her accounts at Credit Union, given her worsening

According to Plaintiff's Complaint, Defendant Mary Carmen Hartley ("Hartley"), the only employee of Credit Union, exploited her relationship with Bachelor to close her account and to take the money for Hartley's own personal use. Upon learning that his grandmother's account had reached a $0 balance and demanding that the money he knew should have been in the account be returned, Credit Union's attorney informed Siemonsma that Hartley had indeed embezzled the money from Bachelor. The First Amended Complaint ("FAC") alleges that Hartley and Credit Union stole both Plaintiffs' money, committed elder abuse and fraud, and are liable for damages.

On November 8, 2010, the Court granted NCUA's Motion to Dismiss with leave to amend due to Plaintiffs' failure to exhaust their administrative remedies or, alternatively, to allege sufficient justifications for their failure to exhaust.On December 20, 2010, Plaintiffs filed their FAC. The NCUA brings the present Motion as the Liquidating Agent for defendant Credit Union following the Credit Union's liquidation.

II. Legal Standard

1. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(1), a complaint must be dismissed if the Court lacks subject matter jurisdiction to adjudicate the claims. Once subject matter jurisdiction is challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v.

, 792 F.2d 925, 927 (9th Cir. 1986)(holding that "the party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists"). Accordingly, the Court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in response to the motion

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 1675

Dismissal without leave to amend is appropriate only when the Court is satisfied that the deficiencies in the complaint could not possibly be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (citing Chang v. Chen, 80 F.3d 1293, 1296 ...


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