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Xie v. De Young Properties 5418, L.P.

United States District Court, E.D. California

April 6, 2017

AGNES XIE, Plaintiff,
DE YOUNG PROPERTIES 5418, L.P. (DE YOUNG), Defendants.


         This matter came before the court on defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, for a more definite statement as to the claims alleged and nature of relief sought by plaintiff under Federal Rule of Civil Procedure 12(e). (Doc. No. 8.) A hearing on the motion was held on March 21, 2017. Plaintiff appeared pro se. Attorney Jared Calvin Marshall appeared on behalf of defendant. For the reasons set forth below, the court grants defendant's motion to dismiss with leave to amend. In addition, although not properly noticed for hearing, the court will deny plaintiff's motions for subpoenas directed at a third party and defendant.


         In her original complaint, plaintiff alleges as follows. On June 30, 2013, plaintiff, Agnes Xie, entered into a purchase contract with defendant, De Young Properties 5418, L.P., for the sale of a single family home in Countryview Community located at 2290 Richert Ave. Clovis, CA 93611. (Doc. No. 1 at 10, ¶ 6.) The purchase price was at $287, 100, for which plaintiff paid a deposit of $2, 500 on June 25, 2013. (Id.) On August 6, 2013, Tina Larson, a De Young sales staff member, confirmed that plaintiff could add her then-husband, Mark Fletcher, to her existing purchase contract without the need to come to the sales office in person. (Id. at ¶ 7.) However, “instead of adding her husband Mark to her existing contract, Tina cancelled [plaintiff's] purchase contract without her knowledge, without her presence, without her signature, instead Tina transferred her purchase contract to Mark at the price of $295, 990.” (Id. at ¶ 8.)

         Plaintiff did not become aware of the fact that her name had been removed from the sales contract until immediately before closing in May 2014 and requested that her name be added back to the purchase contract upon this realization. (Id. at ¶ 9.) Plaintiff's requests were, however, ignored. “In June 2014, [p]laintiff learned that the same property was sold to a [third] party without her and Mark's knowledge.” (Id. at ¶ 10.) Based on plaintiff's search on Zillow, the property was sold for $301, 500 on July 23, 2014, meaning that defendant made a $14, 390 profit from what it would have otherwise gained by selling the property to plaintiff under her sales contract. (Id. at ¶ 16-17.) According to plaintiff, she suffered “direct monetary damage, lost wage due to opportunity cost from her time of searching and secur[ing] the contract by postpon[ing] her new job for three months, [and] traumatic emotional damage.” (Id. at 11, ¶ 12.) Plaintiff also alleges that defendant's breach of the contract “directly contributed to her martial relationship breakdown.” (Id. at ¶ 14.)

         On October 7, 2016 plaintiff filed the instant action alleging intentional breach of contract. (Id. at 1.) Plaintiff seeks compensatory damages, consequential damages for her divorce, special damages, punitive damages, as well as legal expenses and costs for a sum of no less than $200, 000. (Id. at 3.) On January, 3, 2017, plaintiff filed a First Amended Complaint (“FAC”). (Doc. No. 7.)[1] On January 17, 2017, defendant filed the pending motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(e). (Doc. No. 8.) Plaintiff filed her response to defendant's motion to dismiss on February 21, 2017. (Doc. No. 19.) The court construes this response as plaintiff's opposition to defendant's motion to dismiss. Defendant filed its reply on March 14, 2017. (Doc. No. 21.)

         In addition, on February 13, 2017, plaintiff filed a motion for third party subpoena to obtain the original purchase contract from her former husband, Mark Fletcher. (Doc. No. 17 at 1.)[2] In this regard, plaintiff represents the following. Plaintiff received only one copy of the original purchase contract reflecting her as the buyer from defendant. (Id.) That contract was stored in their Fresno apartment, which plaintiff left on August 6, 2013 and did not return to. (Id.) Mr. Fletcher moved out of the apartment in October 2014 to an unknown address and took plaintiff's personal property including the original sales contract with him. (Id.) Plaintiff has emailed Mr. Fletcher to obtain a copy of the original purchase contract, but has not received a response. (Id.)

         On February 21, 2017, plaintiff also filed a motion for a subpoena requiring defendant to produce the original purchase contract of June 30, 2013. (Doc. No. 18.)[3] Plaintiff alleges that defendant maintains a copy of the original purchase contract in its computer system. (Id. at 1.) In support of her motion, plaintiff has included an e-mail exchange between herself and defendant, instructing Tina Larson to add Mr. Fletcher to the contract. (Id. at 4-6.)


         Defendant's motion to dismiss is premised on Federal Rule of Civil Procedure 12(b)(1) and 12(e). In moving to dismiss under Rule 12(b)(1), defendant mounts both a facial attack and factual attack against plaintiff's complaint. (Doc. No. 8-1 at 2.) In its facial attack, defendant notes that plaintiff has not attached a complete copy of the contract to her complaint and contends that the failure to do so is not a mere oversight. (Id. at 1-2.) Defendant has attached a contract to its motion and argues that “the [c]ourt may consider both the written agreement and other documents that establish [p]laintiff previously sought to arbitrate the same claims through reliance on the same agreement.” (Id. at 2.) According to defendant, “[b]oth attacks ultimately attempt to establish that [p]laintiff does not have standing to seek relief requested because she was not a party to the agreement she is suing upon.” (Id. at 4.) Under Rule 12(e), defendant requests that the court require plaintiff to provide a more definite statement of her claims with respect to the contract being sued upon and a more definite statement of the relief requested. (Id. at 2.)

         At the hearing on the pending motion, in response to inquiry by the court, plaintiff clarified that she was alleging the breach of an earlier sales contract in which she was identified as the purchaser and not on the later version of the contract from which her name was omitted and which defendant had attached to its motion to dismiss. In light of that clarification, defense counsel at the hearing withdrew the motion to dismiss under 12(b)(1) and indicated that defendant now sought only a more definite statement of plaintiff's claims under Rule 12(e). As the court will briefly address below, that concession is well-taken.

         I. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) allows a defendant, by motion, to raise the defense that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action. Federal district courts generally have subject matter jurisdiction over civil cases through diversity jurisdiction. 28 U.S.C. § 1332, or federal question jurisdiction, 28 U.S.C.§ 1331. In a motion to dismiss for lack of subject [matter] jurisdiction, a defendant may either attack the allegations of the complaint or may attack the existence of subject matter jurisdiction in fact.

McMillan v. Lowe's Home Centers, LLC, No. 1:15-cv-00695-DAD-SMS, 2016 WL 4899164, at *2 (E.D. Cal. Sept. 14, 2016) (citing Peralta v. Hispanic Bus., Inc., 419 F.3d 1068 (9th Cir. 2005); and Thornhill v. Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979)).

         “A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 383 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). “The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): [a]ccepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction.” Leite v. Crane Co., 797 F.3d 1117, 1121 (9th Cir. 2014). ...

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