United States District Court, N.D. California, San Jose Division
ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE LEWIS
DEFENDANTS' SUPPLEMENTAL BRIEF; GRANTING DEFENDANTS'
MOTIONS TO DISMISS FDCPA CLAIM WITHOUT LEAVE TO AMEND;
DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER STATE
LAW CLAIMS; AND DISMISSING ACTION [RE: ECF 64, 68,
LAB SON FREEMAN UNITED STATES DISTRICT JUDGE.
Niki-Alexander Shetty, proceeding pro se, sues Defendants
First American Title Company (“First American”),
M. Lewis, Inc., and Michael Allen Lewis (“Lewis
Defendants”), for violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq., following Defendants' commencement
of non-judicial foreclosure proceedings on real property
located at 22 Porter Way, Royal Oaks, California (“the
property”). Shetty also asserts a number of state law
claims challenging the foreclosure and seeking to quiet title
to the property.
American and the Lewis Defendants separately move to dismiss
the operative first amended complaint (“FAC”)
under Federal Rule of Civil Procedure 12(b)(6). Shetty
opposes those motions and moves to strike a supplemental
brief filed by the Lewis Defendants in connection with their
motion to dismiss.
reasons discussed below, the Court GRANTS Shetty's motion
to strike, GRANTS Defendants' motions to dismiss the
FDCPA claim without leave to amend, DECLINES to exercise
supplemental jurisdiction over the state law claims, and
DISMISSES the action.
property that lies at the heart of this action has been owned
by an immigrant couple named Heriberto and Maria Elena
Martinez for twenty-five years. FAC ¶ 17, ECF 63. The
Martinezes have operated a business called the Mexico Meat
Market on the property during that time. Id. ¶
19. In August 2007, the Martinezes refinanced the property by
means of a Note secured by a Deed of Trust on the property.
Id. ¶¶ 17-26; Exh. L (Note); Exh. M (Deed
of Trust); Exh. N (Recorded Deed of Trust). The Note
identified Santa Cruz Title Company as the Trustee and
Defendant M. Lewis, Inc. as the Beneficiary. Exh. L to FAC
(Note). Defendant M. Lewis Inc. later substituted Defendant
First American as the Trustee. Exh. X to FAC (Substitution of
claims that in February 2016, the Martinezes executed a Grant
Deed transferring title to themselves and Shetty as joint
tenants. Exh. A to FAC (Grant Deed). Shetty's pleadings
do not explain why the Martinezes granted him an interest in
the property, apparently for $0.00 based on the face of the
Grant Deed. In March 2016, the Lewis Defendants issued a
Notice of Default and Election to Sell under Deed of Trust,
which was recorded by First American. Exh. Y to FAC (Notice
filed this action in June 2016, challenging the non-judicial
foreclosure and seeking to quiet title to the property in
himself as owner in fee. See Compl., ECF 1. The
Court granted Defendants' motions to dismiss the
complaint for failure to state a claim upon which relief may
be granted. See Order Granting Defendants'
Motions to Dismiss with Leave to Amend, ECF 62. The Court
determined that Shetty had not pled facts showing complete
diversity of citizenship and that his asserted federal claims
were not viable. Id. In particular, the Court found
that Shetty could not state a claim under the Thirteenth
Amendment to the United States Constitution, prohibiting
involuntary servitude, or under various federal criminal
statutes recited in the complaint. Id. at 3-4.
Absent a viable federal claim, the Court declined to exercise
supplemental jurisdiction over Shetty's state law claims.
Id. at 4.
Court granted Shetty leave to amend based upon his
representations that he could allege a federal claim under
the FDCPA and could join the Martinezes as parties.
Id. at 5-6. The Court expressly conditioned leave to
amend on Shetty's joinder of the Martinezes based on
their ownership interest in the property and the Court's
concern that they may not be aware of this lawsuit.
Id. Shetty filed the operative FAC on December 2,
2016, asserting a single federal claim under the FDCPA and
numerous state law claims. He did not join the Martinezes as
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can
be granted ‘tests the legal sufficiency of a
claim.'” Conservation Force v. Salazar,
646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). When
determining whether a claim has been stated, the Court
accepts as true all well-pled factual allegations and
construes them in the light most favorable to the plaintiff.
Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681,
690 (9th Cir. 2011). However, the Court need not
“accept as true allegations that contradict matters
properly subject to judicial notice” or
“allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences.” In
re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th
Cir. 2008) (internal quotation marks and citations omitted).
While a complaint need not contain detailed factual
allegations, it “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when it “allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
FAC asserts federal jurisdiction based on both diversity of
citizenship and federal question. He has not alleged facts
showing complete diversity of citizenship between himself and
Defendants. See 28 U.S.C. § 1332(a) (“The
district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States.”). To the
contrary, he alleges facts showing that he and at least some
of the Defendants are citizens of California. FAC
¶¶ 1-9. Accordingly, the only potential basis for
this Court's subject matter jurisdiction is federal
question jurisdiction. The FAC contains one substantive
federal claim, Claim 1, which is asserted under FDCPA. That
claim is discussed in detail in section III.B., below.
Court notes that Claim 13 is asserted under the Declaratory
Judgment Act, 28 U.S.C. § 2201(a). “[T]he
Declaratory Judgment Act does not by itself confer federal
subject-matter jurisdiction.” Nationwide Mut. Ins.
Co. v. Liberatore, 408 F.3d 1158, 1161 (9th Cir. 2005).
A plaintiff asserting a declaratory judgment action must
plead an independent basis for subject matter jurisdiction.
Id. The FAC also contains stray references to
federal statutes, which are insufficient to confer subject
matter jurisdiction. For example, paragraph 111 of the FAC
mentions 18 U.S.C. § 1951, a criminal statute addressing
“Interference with commerce by threats or
violence” which does not provide for a private right of
action. Paragraph 111 also mentions 18 U.S.C. § 1961(1),
which defines “racketeering activity” for
purposes of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”). There is no
indication on this record that Shetty intends to or could
allege a RICO claim. Finally, Paragraph 112 of the FAC
references 18 U.S.C. § 1954, a statute titled
“Offer, acceptance, or solicitation to influence
operations of employee benefit plan” which does not
appear to have any relevance to the facts of this case.
subject matter jurisdiction depends on the FDCPA claim.
turning to Defendants' arguments regarding the FDCPA
claim, the Court addresses two procedural issues. First,
Defendants ask the Court to disregard Shetty's opposition
briefs (ECF 73, 74) as untimely. Second, Shetty asks the
Court to disregard the Lewis Defendants' supplemental
brief (ECF 72).
Shetty's Untimely Opposition Briefs
American's motion to dismiss was filed on December 16,
2016 and the Lewis Defendants' motion to dismiss was
filed on December 19, 2016, making any opposition briefs due
by December 30, 2016 and January 3, 2017, respectively.
See Civ. L.R. 7-3(a) (“opposition must be
filed and served not more than 14 days after the motion was
filed”). Shetty filed opposition to First
American's motion on March 7, 2017 and to the Lewis
Defendants' motion on March 6, 2017, both approximately
nine weeks late. Shetty did not obtain leave of the Court to
file late oppositions and he has not explained why his briefs
were untimely. “[P]ro se litigants are bound by the
rules of procedure.” Ghazali v. Moran, 46 F.3d
52, 54 (9th Cir. 1995). The Court therefore would be well
within its discretion to strike Shetty's opposition
briefs. However, given Shetty's pro se status and the
lack of prejudice to Defendants, the Court in the exercise of
its discretion has considered the opposition briefs.
Lewis Defendants' Unauthorized Supplemental
Lewis Defendants filed a supplemental brief on March 5, 2017,
more than two months after they filed their motion to
dismiss. The supplemental brief was not authorized by the
Court's Civil Local Rules, see Civ. L.R. 7-3,
and the Lewis Defendants did not seek leave of the Court to
file it. For those reasons, and because consideration of the
supplemental brief is not necessary to the Court's
disposition of ...