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Cynthia Myers v. Bank of America

May 17, 2011

CYNTHIA MYERS, C/O ESTATE OF JAMES SOLOMON PLAINTIFF,
v.
BANK OF AMERICA, N.A., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT IN PART WITH LEAVE TO AMEND

Plaintiff, proceeding pro se, filed a complaint under 42 U.S.C. § 1983 alleging federal and state claims. On March 20, 2010, plaintiff filed a first amended complaint ("FAC") and a petition for a temporary restraining order ("TRO") against the Bank of America, N.A.; Regional Trustees Services Corporation; Mortgage Electronic Registration Systems, Inc.; the law firm of Miles, Bauer, Bergstrom & Winters LLP; ERA Cusick Realty; several individual officers or employees of those firms; and Does1 through 10,000.

On May 10, 2011, an order was filed adopting the Report and Recommendation ("Report") filed on March 2, 2011. Accordingly, plaintiff's section 1983 claim has been dismissed without leave to amend for failure to state a claim upon which relief can be granted, plaintiffs' request for a TRO was denied, and the Court declined to exercise supplemental jurisdiction over plaintiff's state law claim. Because, however, plaintiff may able to amend her complaint to assert a basis for diversity jurisdiction, plaintiff's state law claims are dismissed with leave to amend, as explained in more detail below. [See Report at 7 n.2].

Plaintiff has the following options:

1. Plaintiff may continue this action in this court by filing a document labeled "Second Amended Complaint" bearing case number SACV 10-0003 ODW (AJW) within twenty-one (21) days of the date of this order. To withstand dismissal, the amended complaint must attempt to correct the defects described below. The amended complaint should be limited to plaintiff's state law claims only because plaintiff's federal claim was dismissed without leave to amend. If plaintiff is suing in a representative capacity and therefore, for the reasons explained below, is required to obtain counsel in order to proceed with this action, plaintiff should file a notice of substitution of counsel at the same time she files her second amended complaint. Any request for an extension of the twenty-one day deadline must be filed before that deadline and be supported by a showing of good cause.

2. Plaintiff may file a "Notice of Intent Not to Amend Complaint" within twenty-one (21) days of the date of this order. The timely filing of a notice of intent not to amend will be construed as an indication that plaintiff wishes to challenge dismissal of her state law claims in the Ninth Circuit Court of Appeals. If the court receives timely written notice of plaintiff's intent not to file an amended complaint, plaintiff's state law claims will be dismissed without prejudice for lack of subject matter jurisdiction, and plaintiff may seek to appeal the judgment of dismissal. Cf. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-1066 (9th Cir. 2004); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

3. Plaintiff may do nothing in response to this order. If plaintiff does not respond to this order by filing either a timely amended complaint or a timely notice of intent not to amend, plaintiff will be deemed to have consented to the dismissal of this action with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with this order. See Edwards, 356 F.3d at 1063-1066.

Plaintiff is cautioned that failure to timely file an amended complaint will result in dismissal of this action.

Plaintiff's Allegations

The FAC is 128 pages long. It is confusing, disorganized, argumentative, and replete with lengthy excerpts and quotations from legal and other sources. Many, if not most, of the relevant facts are omitted, or at least are not alleged in any understandable fashion. However, it appears that plaintiff is challenging:

(1) the validity of a non-judicial foreclosure proceeding pursuant a promissory note secured by a deed of trust with a power-of-sale clause, on the ground that the mortgage debt was paid in full or on other grounds rendering the non-judicial foreclosure proceeding unlawful on the facts of this case; and/or (2) the lawfulness or enforceability of the promissory note and deed of trust, which plaintiff alleges are void or unenforceable due to fraud, lack of consideration, unconscionability, or on other grounds. [See, e.g., FAC 7, 9, 20-22, 25, 28-31]. Plaintiff alleges numerous violations of California law. [FAC 1]. In the body of her complaint, plaintiff also alleges that her Fourteenth Amendment due process rights have been violated. [See, e.g., FAC 7, 30-34].

Discussion

Subject matter jurisdiction

A complaint must contain "a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support[.]" Fed. R. Civ. P. 8. "The party seeking a federal forum has the burden of establishing [subject matter] ...


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