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Kirkeby v. Burns

United States District Court, S.D. California

March 13, 2015

ANASTASIA HELENE KIRKEBY, Plaintiff,
v.
LARRY BURNS aka LAWRENCE F. BURZYNSKI, et al., Defendants.

ORDER: (1) GRANTING MOTION TO DISMISS FOR LACK OF JURISDICTION (2) DENYING MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AS MOOT (3) GRANTING PLAINTIFF LEAVE TO FILE SECOND AMENDED COMPLAINT

ROGER T. BENITEZ, District Judge.

Before this Court is a Motion to Dismiss for Lack of Jurisdiction, filed by Defendants JP Morgan Chase Bank, N.A., and California Reconveyance Company. (Docket No. 26.)

BACKGROUND

On December 5, 2014, Mrs. Kirkeby brought this action asserting multiple claims against five defendants. (Docket No. 1.) On January 12, 2015, Plaintiff Anastasia Kirkeby filed a First Amended Complaint asserting seven state law claims: (1) violation of California Penal Code § 529, (2) California Civil Code § 3426, (3) California Penal Code § 502, (4) breach of the duty of loyalty and aiding and abetting breach of fiduciary duty, (5) conversion, (6) intentional interference with a contract, (7) California Business and Professions Code § 17200. Mrs. Kirkeby's First Amended Complaint removed three defendants and added three new defendants. She also added her husband, Glenn Kirkeby, as a co-plaintiff.

DISCUSSION

I. Defendants' Motion to Dismiss for Lack of Jurisdiction

Defendants JP Morgan Chase Bank, N.A., and California Reconveyance Company argue this Court lacks subject matter jurisdiction over Plaintiffs case. Plaintiff filed an Opposition.

A. Federal Question Jurisdiction

District courts have original jurisdiction over civil actions arising "under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

Plaintiffs First Amended Complaint alleges that Defendants violated seven California state laws.[1] Because the Complaint alleges no federal claims, this Court does not have federal question jurisdiction over this matter.

B. Diversity Jurisdiction

District courts have original jurisdiction over civil actions where (1) the amount in controversy exceeds $75, 000, and (2) there is complete diversity of citizenship. 28 U.S.C. § 1332(a). Complete diversity of citizenship exists where no plaintiff is from the same state as any Defendant. Abrego Abrego v. Dow Chern. Co., 443 F.3d 676, 679 (9th Cir. 2006) (citing Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005).

Complete diversity does not exist here. Plaintiff alleges that she and her husband are citizens of California. She alleges that Defendant Larry Burns or Lawrence Burzynski is also a citizen of California. Because at least one plaintiff is a citizen of the same state of at least one defendant, this Court does not have diversity jurisdiction over this case.

Plaintiff failed to establish this Court has subject matter jurisdiction over this action. The Court therefore GRANTS Defendants' Motion to Dismiss for Lack of Jurisdiction.

II. Plaintiff's Motion for Leave to Amend

On February 19, 2015, Plaintiff filed an Ex Parte Motion for Leave to File a Second Amended Complaint. (Docket No. 30.) Defendants filed an Opposition.

Pursuant to Federal Rule of Civil Procedure 15, courts "should freely give leave when justice so requires."

Plaintiff contends that a second amended complaint will enable her to show that this Court has subject matter jurisdiction over this matter. She also claims that "newly discovered evidence" necessitates addition of new claims and the identity of doe defendants.

Plaintiff's Motion for Leave to Amend is GRANTED. Plaintiff may add Mr. Kirkeby as co-plaintiff and new claims against Defendants. However, Plaintiff must take care to cure the deficiencies pointed out in this Court's order. The Court also cautions Plaintiff to make her best effort to include all possible claims against all defendants in the Second Amended Complaint.

Further, as the Court has stated in previous orders, Plaintiff has provided no reason to file motions without giving notice to Defendants. Any future ex parte motions from Plaintiff will not be accepted.

CONCLUSION

Finding this Court lacks subject matter jurisdiction to hear this action, Defendants' Motion to Dismiss for Lack of Jurisdiction is GRANTED. Plaintiff's Motion to file a Second Amended Complaint is GRANTED. If Plaintiff believes she can cure the deficiencies in the previous complaints, Plaintiff is ORDERED to file any Second Amended Complaint on or before April 15. 2015. Finally, Defendants' Motion to Dismiss for failure to state a claim (Docket No. 18) is DENIED as moot. The action is DISMISSED without prejudice. The Clerk may close the case.

IT IS SO ORDERED.


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