The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER RE MOTIONS FOR DISMISSAL, MOTION TO EXPUNGE LIS PENDENS
Defendant Federal Deposit Insurance Corporation ("FDIC"), in its capacity as receiver for IndyMac Bank, moves to dismiss under Fed. R. Civ. P. 12(b)(1), or, in the alternative, for summary judgment on all of Plaintiff's claims. [Dock. # 6] Also pending are motions by Defendant OneWest Bank, FSB ("OneWest") to dismiss [dock. #9] and to expunge the lis pendens filed by Plaintiff in connection with this action [dock. # 10]. Plaintiff has not filed briefs in opposition to any of these motions.
For the reasons that follow, the Court GRANTS Defendant FDIC's motion for dismissal under Fed. R. Civ. P. 12(b)(1), or, in the alternative, for summary judgment on all of Plaintiff's claims; GRANTS with leave to amend OneWest's motion to dismiss; and GRANTS OneWest's motion to expunge the lis pendens.
On July 11, 2008, the Office of Thrift Supervision ("OTS") closed IndyMac and appointed the FDIC as the bank's receiver. The same day, OTS authorized the creation of IndyMac Federal Bank, FSB ("IndyMac Federal") and appointed the FDIC as conservator for IndyMac Federal ("FDIC-Conservator"). Also on that day, pursuant to a purchase and assumption agreement, the bulk of the assets and deposit liabilities of IndyMac were transferred to the FDIC-Conservator.
On March 19, 2009, the OTS closed IndyMac Federal and appointed the FDIC as receiver for IndyMac Federal. The same day, substantially all of the assets and liabilities of IndyMac Federal were transferred to OneWest, pursuant to an agreement between the FDIC, as receiver for IndyMac Federal, and OneWest.
On November 12, 2009, the FDIC, by its Board of Directors, issued a resolution determining that in each IndyMac receivership, "[I]nsufficient assets exist to make any distribution on general unsecured claims . . . and therefore all such claims, asserted or unasserted, will recover nothing and have no value." FDIC Ex. D (hereinafter "no value determination"). On November 18, 2009, the FDIC published a notice of the no value determination in the Federal Register. 74 Fed. Reg. 59540; FDIC Ex. E.
On May 12, 2010, Plaintiff brought suit against OneWest and IndyMac Bank for "Damages and for Injunctive Relief to Stay Wrongful Foreclosure Sale of Property and Ex Parte Application for Temporary Restraining Order" in the San Diego County -- North County Regional Center, Superior Court of California. [Dock. # 9, Ex. 1] On August 16, 2010, Plaintiff filed an amended complaint asserting the following claims: (1) Wrongful Foreclosure, (2) Fraud by Concealment, (3) Fraud by Misrepresentation, (4) Conversion, and (5) Intentional Infliction of Emotional Distress. [Dock. # 9, Ex. 2] Plaintiff seeks monetary damages and injunctive relief to prevent Defendants "from any and all further attempts to affect plaintiff's ownership interest in subject PROPERTY." Id. at 13. On September 9, 2010, the FDIC, in its capacity as receiver for IndyMac Bank, removed this action to federal court pursuant to 12 U.S.C. § 1819(b) and 28 U.S.C. § 1441. [Dock. #1]
A moving party may base a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction on the allegations of the complaint, or may bring a factually based motion "by presenting affidavits or other evidence properly brought before the court . . . ." Savage v. Glendale Union High School, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). If the motion to dismiss for lack of jurisdiction is factually based, the court may look beyond the allegations of the complaint. Id. (citing White v. Lee, 227 F.3d, 1214, 1242 (9th Cir. 2000)). If the moving party supports a motion to dismiss for lack of jurisdiction with evidence, the nonmoving party "must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id.
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to establish an essential element of the nonmoving party's case on which the nonmoving party bears the burden of proving at trial. Id. at 322-23.
Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 314. The nonmoving party cannot oppose a properly supported summary judgment motion by "rest[ing] on mere allegations or denials of his pleadings." Anderson, 477 U.S. at 256. When ruling on a summary judgment motion, the court must view all inferences drawn from the underlying facts ...