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Diamond P. Flint, Beneficiary and David v. Stefan Krause

October 5, 2011

DIAMOND P. FLINT, BENEFICIARY AND DAVID J. PELKEY, EXECUTOR,
PLAINTIFF,
v.
STEFAN KRAUSE, CFO, DEUTSCHE BANK AG; CHARLES NOSKI, CFO, BANK OF AMERICA, N.A.; SPIKE
BURLINGAME, CFO; LAWYER TITLE INSURANCE CORPORATION; ANNA A. GHAJAR, ESQ., S.B.N. 270363, MILES, BAUER, BERGSTROM & WINTERS, LLP; AND DOES 1 THROUGH X; ROES 1 THROUGH X, INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER GRANTING DEFENDANTS STEFAN KRAUSE AND CHARLES NOSKI'S MOTION TO DISMISS FIRST AMENDED COMPLAINT (Doc. No. 8)

Presently before the Court is Defendants Stefan Krause and Charles Noski's ("Defendants") motion to dismiss Plaintiffs' First Amended Complaint ("FAC"). (Doc. No. 2.) The motion is unopposed. For the following reasons, the motion is GRANTED.

I.

BACKGROUND

On or about November 20, 2009, Nancy Valentine, trustee of the Westonhill Family Trust and on behalf of Diamond P. Flint and David J. Pelkey ("Plaintiffs"), mailed a "Conditional Acceptance and Demand" ("POC") as well as an "Affidavit of Notary Presented and Certificate of Mailing" ("Affida-vit") to Bank of America Home Loans, Recontrust Company, N.A., and Mers, Inc. with the intent to fully settle the mortgage account of the property known as 11460 Westonhill Drive, San Diego, CA 92126. (FAC at 1-6, EXHIBIT B.) Plaintiffs allege that the Defendants failed to rebut or respond to the POC and Affidavit, thus qualifying as an admission of fact to the Plaintiffs' claims. (FAC at 5, EXHIBIT B.)

Plaintiffs filed the FAC in this action (Doc. No. 2), asserting claims for damages and a quieting of title against Stefan Krause, CFO, Deutsche Bank AG; Charles Noski, CFO, Bank of America, N.A.; Spike Burlingame, CFO, Lawyer Title Insurance Corporation; Anna A. Ghajar, Esq., S.B.N. 270363, Miles, Bauer, Bergstrom & Winters, LLP; Does I through X; and Roes I through X inclusive. (FAC at 1-2.) On May 19, 2011, Defendants filed a Motion to Dismiss the First Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), lack of personal jurisdiction pursuant to Rule 12(b)(2), insufficient service of process pursuant to Rule 12(b)(5), and failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). (Doc. No.8.) Plaintiffs did not respond.

II.

DISCUSSION

Defendants move to dismiss all claims against them for lack of subject matter jurisdiction, personal jurisdiction, insufficient service of process, and failure to state a claim.Because the Court has granted the motion based on subject matter jurisdiction, personal jurisdiction, and insufficient process, the Court will not address the 12(b)(6) arguments for failure to state a claim, as they are now moot. Defendants' motion on that basis is therefore denied as moot.

Rule 12(b)(1): Subject Matter Jurisdiction

A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(1) if, considering the factual allegations in the light most favorable to the plaintiff, the action: (1) does not arise under the Constitution, laws, or treaties of the United States, or does not fall within one of the other enumerated categories of Article III, Section 2, of the Constitution; (2) is not a case or controversy within the meaning of the Constitution; or (3) is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); D.G. Rung Indus., Inc. v. Tinnerman, 626 F.Supp. 1062, 1063 (W.D. Wash. 1986). When considering a motion to dismiss pursuant to Rule 12(b)(1), the court is not restricted to the face of the pleadings, but may review any evidence 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, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989); Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). A federal court is presumed to lack subject matter jurisdiction until the plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore, the plaintiff bears the burden of proving the existence of subject matter jurisdiction. Stock West, 873 F.2d at 1225; Thornhill Publishing Co., Inc. v. Gen'l Tel & Elect. 594 F.2d 730, 733 (9th Cir. 1979).

There are two types of Rule 12(b)(1) motions: (1) a facial attack on subject-matter jurisdiction based solely on the allegations made in the complaint, see Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003); or (2) a factual attack on subject-matter jurisdiction that may be based on extrinsic evidence outside of the pleadings, see White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A 12(b)(1) motion to dismiss based on the lack of third-party standing is a factual attack on a federal court's subject-matter jurisdiction. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). With a factual attack, the moving party "disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction" by presenting affidavits or other evidence supporting his motion. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

Here, Defendants argue that Plaintiffs' claims failed to establish any valid basis for federal subject matter jurisdiction. Plaintiffs have the burden of proof to show jurisdiction exists. Stock West, 873 F.2d at 1225; Thornhill Publishing Co., Inc., 594 F.2d at 733. Defendants argue that the Plaintiffs do not show that this is a civil action "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. §1331. Defendants further state that the Plaintiffs do not show complete diversity of citizenship of the parties exists to satisfy the jurisdictional basis of 28 U.S.C. § 1332. Moreover, Defendants argue that the Plaintiffs' attempt to establish jurisdiction through use of the postal service, "right to use of habeas corpus per California Constitution," and rights to property fail to state sufficient facts or legal support to give rise to federal subject matter jurisdiction.

Plaintiffs assert federal subject matter jurisdiction based on numerous theories, including: residency, place of business, use of the postal service, claims upon property, property rights, the State of California's refusal of the Plaintiffs' remedy of the right of a writ of habeas corpus, and violations of the Security Exchange Commission. The Plaintiffs, however, fail to explain how such theories apply before coming to a legal conclusion that such claims are "rights clearly within the federal jurisdiction." (FAC at 3.) Plaintiffs have failed to indicate any federal law that may bring the claims under the jurisdiction of this Court. They have also failed to offer any evidence of their own citizenship or the citizenship of the Defendants. Plaintiffs' vague and conclusory ...


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