United States District Court, S.D. California
ORDER: (1) DENYING REQUEST TO REOPEN CASE; (2)
GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT (ECF No.
Janis L. Sammartino United States District Judge
September 30, 2016, the Court granted Plaintiffs' Motion
to Proceed In Forma Pauperis, screened the Complaint, and
dismissed the Complaint without prejudice. (ECF No. 3.) The
Court found that Plaintiffs' Complaint failed to state a
legal claim upon which relief could be granted because it had
only conclusory assertions stating that Defendant Caliber
Home Loans “violated Plaintiffs' rights under the
Constitution and federal and state law governing real estate
foreclosures.” (Id. at 4.) The Court also
found that Plaintiffs had not proven that this Court had
subject matter jurisdiction over the action. (Id. at
5.) Plaintiffs then filed an Amended Complaint. (ECF No.
April 9, 2018, the Court closed this case for failure to
prosecute pursuant to Civil Local Rule 41.1. (ECF No. 12.)
Plaintiffs have filed a request that the dismissal be set
aside and the case be reopened. (ECF No. 13.) Plaintiffs
state Defendant has never responded to the Complaint and
requests the Court enter orders against Defendant and award
damages to Plaintiffs. (Id. at 2.)
reviewing Plaintiffs' First Amended Complaint, the Court
finds it must again dismiss Plaintiff's Complaint.
Plaintiffs state Defendant lacks standing to sell or
foreclose on Plaintiffs' property and is violating
Plaintiffs' right to quiet enjoyment of their property.
(ECF No. 5, at 5, 7, 10.). Plaintiffs state Defendants
engaged in “fraudulent foreclosures” which is a
felony under the California Penal Code. (Id. at 10,
13-14.) Plaintiffs state Defendants are violating Federal and
“California Department of Real Estate laws.”
(Id. at 16.) Plaintiffs' first cause of action
is for “fraud” and is based on Defendants'
alleged misrepresentation and filing false documents.
(Id. at 19.) Plaintiffs' second cause of action
is for “violations of federal, and California state
laws regarding real property foreclosures.” It appears
the laws Plaintiffs refer to for this cause of action are
“US Code Chapter 47, # 1021, and the California Penal
Code, Section 115.5.” (Id. at 20.)
Plaintiffs' third cause of action is financial elder
abuse under “California Welfare and Institutions Code,
Article 15610.3-.70.” (Id. at 19-20.)
still unclear to the Court whether subject matter
jurisdiction exists over Plaintiffs' action.
Additionally, Plaintiffs have not proven or even alleged that
the Court has personal jurisdiction over Defendants. The
Court refers Plaintiffs' to page 5 of the Court's
prior order (docket number 3) wherein the Court laid out the
bases for subject matter jurisdiction: diversity jurisdiction
and federal question jurisdiction. The Court found Plaintiffs
had not proven that either basis for subject matter
jurisdiction existed. (ECF No. 3, at 5.) The First Amended
Complaint does not cure this deficiency.
diversity jurisdiction, Plaintiffs request damages of $500,
000 from each Defendant; thus, the amount in controversy is
met. However, Plaintiffs provide no information as to the
citizenship of either Defendant and the Court is unable to
determine if the Parties are diverse. Diversity of
citizenship jurisdiction exists when all plaintiffs are
diverse from all defendants, Owen Equip. & Erection Co.
v. Kroger, 437 U.S. 365, 373 (1978). Without any
information as to the citizenship of either Defendant, the
Court is unable to determine whether diversity jurisdiction
federal question jurisdiction, the only federal law Plaintiff
refers to is “US Code Chapter 47, # 1021.” If
this is a reference to 47 U.S.C. § 1021, the Court is
unable to determine how this statute, titled
“Department of Justice Telecommunications Carrier
Compliance Fund” relates to Plaintiffs'
allegations. Federal question jurisdiction exists with
“all civil actions arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C.
§ 1331. Plaintiffs have not stated how their Complaint
arises under any federal law. See Levy v. Ryan Seacrest
Prods., No. 2:13-CV-0070 KJM KJN, 2013 WL 418291, at *4
(E.D. Cal. Jan. 30, 2013) (“‘A ‘bare
citation to' federal statutes or the U.S. Constitution
fails to establish the requisite subject matter
jurisdiction.” (citing Denton v. Agents of
Or., No. 3:12-CV-00022-HZ, 2012 WL 6617389, at *2 (D.
Or. Dec. 19, 2012))). And, as the Court noted previously,
merely asserting that Defendant violated Plaintiffs'
rights under the Constitution “is not sufficient to
apprise either the Court or the named Defendant as to the
claims at issue in this case. Plaintiffs would need to, at a
minimum, list specific statutory or constitutional
provisions Defendant violated in order to cure this
deficiency.” (ECF No. 3, at 4-5.)
Plaintiffs have not established that subject matter
jurisdiction exists over this case. Further, Plaintiffs have
not proven that this Court has personal jurisdiction over
Defendants because Plaintiffs have provided no information as
to whether Defendants are located in this state, conduct any
business in this state, or have any contacts in this state.
Court DENIES Plaintiffs' request to
reopen the case. However, the Court GRANTS
Plaintiffs an opportunity to file a second amended complaint.
The Complaint is to specify not only Plaintiffs' causes
of action, but the specific laws that Plaintiffs allege
Defendants violated. The Complaint must also detail why this
Court has subject matter jurisdiction over this matter and
personal jurisdiction over Defendants.
SHALL file a second amended complaint on
or before June 25, 2018. If Plaintiffs file a second
amended complaint, their case will be reopened. The Court
will again screen Plaintiffs' Complaint and will direct
the U.S. Marshals to serve the Complaint if it passes
screening. If Plaintiffs fail to file a second amended
complaint by this date, their case will remain closed.
IS SO ORDERED.
 Plaintiffs' Amended Complaint
lists two Defendants: Caliber Home Loans and Quality Loan
Service Corporation. Plaintiffs then filed a form titled
“Proof of Service by First-Class Mail.” (ECF No.
5.) The form Plaintiffs filed was created for the Superior
Court of California. Plaintiffs crossed out “Superior
Court of California” and wrote in “US District
Court.” The form also clearly states: “Do not use
this Proof of Service to show service of a Summons and
Complaint.” This proof of service is therefore
inadequate. However, as detailed below, the Court permits
Plaintiffs to file a second amended complaint. Because
Plaintiffs have been granted permission to proceed IFP, the
Court will order the United States Marshals to serve the
complaint if it passes the Court's screening. See 28
U.S.C. § 1915(e)(2) (the court must ...