1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Denise Beyard, et al., No. 1:21-cv-01063-KJM-SAB 12 Plaintiffs, ORDER 13 v. 14 Pentagon Federal Credit Union, et al., 1S Defendants. 16 17 Plaintiffs Denise Beyard, Caroline Cardoza and Calvin James allege Pentagon Federal 18 | Credit Union wrongly charged them duplicative fees for insufficient account balances. The credit 19 | union moves to dismiss for lack of jurisdiction, and its asks this court to reconsider the assigned 20 | Magistrate Judge’s decision not to reach a similar jurisdictional dispute. As explained in this 21 | order, the court grants the motion to dismiss with leave to amend, and denies as moot the motion 22 | for reconsideration. 23 | I. ALLEGATIONS 24 This case was originally filed on behalf of Pangnhia Vue, a member of the credit union 25 | who alleged it had assessed her duplicative $30 fees for insufficient funds. See Compl. □ 14-25, 26 | ECF No. 1. According to her complaint, her agreement with the credit union permitted it to 27 | assess one fee only. See id. 9 21, 24. She asserted claims for breach of contract, breach of the 28 | covenant of good faith and fair dealing, unjust enrichment and unfair competition, among others,
1 and she proposed to represent a class of others in the same situation. See id. ¶¶ 75–117. The 2 credit union successfully moved to dismiss all of those claims but the contract claim. See Order 3 (Sept. 29, 2023), ECF No. 38. 4 About a year later, Vue sought permission to amend her complaint to substitute three new 5 class representatives in her place. See Mot. Substitute, ECF No. 50. She had stopped 6 communicating with her counsel and appeared to have “lost interest in the case.” Dosaj Decl. ¶ 3, 7 ECF No. 52. The credit union opposed the motion for several reasons. Among other things, it 8 argued the court lacked subject matter jurisdiction because the complaint offered no allegations to 9 show more than $5 million was in dispute, as required by 28 U.S.C. § 1332(d). See Opp’n at 14– 10 17, ECF No. 55. It also argued the court lacked subject matter jurisdiction because the case had 11 become moot. See id. at 17–19. The motion was referred to the assigned Magistrate Judge, who 12 granted it in a reasoned order. See generally MJ Order, ECF No. 66. The Magistrate Judge 13 rejected the credit union’s mootness argument, see id. at 7–8, but he deferred resolution of the 14 dispute about the amount in controversy as “beyond the purview of the instant motion,” id. at 8–9. 15 As a result, the three current plaintiffs—Beyard, Cardoza and James—where substituted in Vue’s 16 place. See First Am. Compl. ¶¶ 5–7, ECF No. 67. 17 The credit union then filed its pending motion for reconsideration. See generally Mot. 18 Recons., ECF No. 71. It asks this court to reconsider only the Magistrate Judge’s decision that 19 the claims were not moot and that disputes about the amount in controversy should be resolved 20 later. See id. at 2 & n.1. A few days after the credit union filed its motion to reconsider, it also 21 moved to dismiss the amended complaint. See generally Mot. Dismiss, ECF No. 72. It reiterates 22 its argument about the amount in controversy, see id. at 4–6, and it argues in addition that this 23 district is an improper venue, see id. at 6–9. Plaintiffs oppose both motions. See generally Opp’n 24 Recons., ECF No. 73; Opp’n Dismiss, ECF No. 79. The matters are now fully briefed, see Reply 25 Dismiss, ECF No. 86. The court submits the matter without holding a hearing. See E.D. Cal. 26 L.R. 230(g). 1 II. DISCUSSION 2 “[T]here is no mandatory ‘sequencing of jurisdictional issues.’” Sinochem Int’l Ltd. v. 3 Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (quoting Ruhrgas AG v. Marathon Oil 4 Co., 526 U.S. 574, 584 (1999)). For that reason, courts can resolve jurisdictional disputes—such 5 as the parties’ disputes about mootness and the amount in controversy—in the order they choose. 6 Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 4 (2023). It is most efficient in this case to begin 7 with the credit union’s argument about the amount in controversy. 8 The credit union moves to dismiss under Rule 12(b)(1). See Mot. Dismiss at 2. “A Rule 9 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 10 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations 11 contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, 12 in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would 13 otherwise invoke federal jurisdiction.” Id. The credit union does not contend any of the 14 plaintiffs’ jurisdictional allegations are false, but rather that those allegations, if true, would not 15 show the court has jurisdiction. See, e.g., Mot. Dismiss at 4. Its motion is a “facial attack.” Safe 16 Air, 373 F.3d at 1039. 17 A “facial attack” is tested by the same standard that would apply to a motion to dismiss 18 for failure to state a claim under Rule 12(b)(6): “Accepting the plaintiff’s allegations as true and 19 drawing all reasonable inferences in the plaintiff’s favor, the court determines whether the 20 allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co., 21 749 F.3d 1117, 1121 (9th Cir. 2014). That is, the complaint must include allegations of “facts, 22 not mere legal conclusions, in compliance with the pleading standards established by Bell Atlantic 23 Corp. v. Twombly and Ashcroft v. Iqbal.” Id. (citing 550 U.S. 544 (2007) and 556 U.S. 662 24 (2009)). And under that standard, the court does not consider any materials or evidence unless 25 they are part of the complaint itself, attached to the complaint, incorporated into the complaint by 26 reference or subject to judicial notice. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 27 998 (9th Cir. 2018); Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013). 1 The operative complaint in this case invokes this court’s jurisdiction over minimally 2 diverse class actions in which the amount in controversy exceeds $5 million. See First Am. 3 Compl. ¶ 9 (citing 28 U.S.C. § 1332(d)(2)). The complaint does not explain why more than $5 4 million is in controversy. Nor do its allegations permit the court to infer more than $5 million is 5 in dispute. The three named plaintiffs allege they were charged $30 fees on a few occasions in 6 2019, 2020 and 2021. See First Am. Compl. ¶¶ 16–21. They allege “thousands of members” of 7 their proposed class “or more” were charged similar fees, but only on “information and belief,” 8 and without estimates of frequency or the number of fees assessed. Id. ¶ 56. In short, based on 9 the complaint’s allegations alone, it is conceivable the allegedly duplicative fees exceeded $5 10 million, but it is equally conceivable the total is much lower.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Denise Beyard, et al., No. 1:21-cv-01063-KJM-SAB 12 Plaintiffs, ORDER 13 v. 14 Pentagon Federal Credit Union, et al., 1S Defendants. 16 17 Plaintiffs Denise Beyard, Caroline Cardoza and Calvin James allege Pentagon Federal 18 | Credit Union wrongly charged them duplicative fees for insufficient account balances. The credit 19 | union moves to dismiss for lack of jurisdiction, and its asks this court to reconsider the assigned 20 | Magistrate Judge’s decision not to reach a similar jurisdictional dispute. As explained in this 21 | order, the court grants the motion to dismiss with leave to amend, and denies as moot the motion 22 | for reconsideration. 23 | I. ALLEGATIONS 24 This case was originally filed on behalf of Pangnhia Vue, a member of the credit union 25 | who alleged it had assessed her duplicative $30 fees for insufficient funds. See Compl. □ 14-25, 26 | ECF No. 1. According to her complaint, her agreement with the credit union permitted it to 27 | assess one fee only. See id. 9 21, 24. She asserted claims for breach of contract, breach of the 28 | covenant of good faith and fair dealing, unjust enrichment and unfair competition, among others,
1 and she proposed to represent a class of others in the same situation. See id. ¶¶ 75–117. The 2 credit union successfully moved to dismiss all of those claims but the contract claim. See Order 3 (Sept. 29, 2023), ECF No. 38. 4 About a year later, Vue sought permission to amend her complaint to substitute three new 5 class representatives in her place. See Mot. Substitute, ECF No. 50. She had stopped 6 communicating with her counsel and appeared to have “lost interest in the case.” Dosaj Decl. ¶ 3, 7 ECF No. 52. The credit union opposed the motion for several reasons. Among other things, it 8 argued the court lacked subject matter jurisdiction because the complaint offered no allegations to 9 show more than $5 million was in dispute, as required by 28 U.S.C. § 1332(d). See Opp’n at 14– 10 17, ECF No. 55. It also argued the court lacked subject matter jurisdiction because the case had 11 become moot. See id. at 17–19. The motion was referred to the assigned Magistrate Judge, who 12 granted it in a reasoned order. See generally MJ Order, ECF No. 66. The Magistrate Judge 13 rejected the credit union’s mootness argument, see id. at 7–8, but he deferred resolution of the 14 dispute about the amount in controversy as “beyond the purview of the instant motion,” id. at 8–9. 15 As a result, the three current plaintiffs—Beyard, Cardoza and James—where substituted in Vue’s 16 place. See First Am. Compl. ¶¶ 5–7, ECF No. 67. 17 The credit union then filed its pending motion for reconsideration. See generally Mot. 18 Recons., ECF No. 71. It asks this court to reconsider only the Magistrate Judge’s decision that 19 the claims were not moot and that disputes about the amount in controversy should be resolved 20 later. See id. at 2 & n.1. A few days after the credit union filed its motion to reconsider, it also 21 moved to dismiss the amended complaint. See generally Mot. Dismiss, ECF No. 72. It reiterates 22 its argument about the amount in controversy, see id. at 4–6, and it argues in addition that this 23 district is an improper venue, see id. at 6–9. Plaintiffs oppose both motions. See generally Opp’n 24 Recons., ECF No. 73; Opp’n Dismiss, ECF No. 79. The matters are now fully briefed, see Reply 25 Dismiss, ECF No. 86. The court submits the matter without holding a hearing. See E.D. Cal. 26 L.R. 230(g). 1 II. DISCUSSION 2 “[T]here is no mandatory ‘sequencing of jurisdictional issues.’” Sinochem Int’l Ltd. v. 3 Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (quoting Ruhrgas AG v. Marathon Oil 4 Co., 526 U.S. 574, 584 (1999)). For that reason, courts can resolve jurisdictional disputes—such 5 as the parties’ disputes about mootness and the amount in controversy—in the order they choose. 6 Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 4 (2023). It is most efficient in this case to begin 7 with the credit union’s argument about the amount in controversy. 8 The credit union moves to dismiss under Rule 12(b)(1). See Mot. Dismiss at 2. “A Rule 9 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 10 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations 11 contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, 12 in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would 13 otherwise invoke federal jurisdiction.” Id. The credit union does not contend any of the 14 plaintiffs’ jurisdictional allegations are false, but rather that those allegations, if true, would not 15 show the court has jurisdiction. See, e.g., Mot. Dismiss at 4. Its motion is a “facial attack.” Safe 16 Air, 373 F.3d at 1039. 17 A “facial attack” is tested by the same standard that would apply to a motion to dismiss 18 for failure to state a claim under Rule 12(b)(6): “Accepting the plaintiff’s allegations as true and 19 drawing all reasonable inferences in the plaintiff’s favor, the court determines whether the 20 allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co., 21 749 F.3d 1117, 1121 (9th Cir. 2014). That is, the complaint must include allegations of “facts, 22 not mere legal conclusions, in compliance with the pleading standards established by Bell Atlantic 23 Corp. v. Twombly and Ashcroft v. Iqbal.” Id. (citing 550 U.S. 544 (2007) and 556 U.S. 662 24 (2009)). And under that standard, the court does not consider any materials or evidence unless 25 they are part of the complaint itself, attached to the complaint, incorporated into the complaint by 26 reference or subject to judicial notice. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 27 998 (9th Cir. 2018); Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013). 1 The operative complaint in this case invokes this court’s jurisdiction over minimally 2 diverse class actions in which the amount in controversy exceeds $5 million. See First Am. 3 Compl. ¶ 9 (citing 28 U.S.C. § 1332(d)(2)). The complaint does not explain why more than $5 4 million is in controversy. Nor do its allegations permit the court to infer more than $5 million is 5 in dispute. The three named plaintiffs allege they were charged $30 fees on a few occasions in 6 2019, 2020 and 2021. See First Am. Compl. ¶¶ 16–21. They allege “thousands of members” of 7 their proposed class “or more” were charged similar fees, but only on “information and belief,” 8 and without estimates of frequency or the number of fees assessed. Id. ¶ 56. In short, based on 9 the complaint’s allegations alone, it is conceivable the allegedly duplicative fees exceeded $5 10 million, but it is equally conceivable the total is much lower. A conceivable recovery in excess of 11 $5 million does not suffice; plaintiffs must “nudge[] their claims across the line from conceivable 12 to plausible.” Twombly, 550 U.S. at 570. The court grants the motion to dismiss. 13 Plaintiffs do cite a variety of evidence in opposition to the credit union’s motion, such as a 14 report by their retained expert and deposition testimony by the person the credit union designated 15 as its representative under Federal Rule of Civil Procedure 30(b)(6). See Opp’n Dismiss 4–15. 16 But they did not include allegations along these lines in their operative complaint. The court 17 considers only the complaint in a facial challenge like this one, not the evidence the parties may 18 have developed in discovery. The court therefore construes plaintiffs’ opposition as proposing 19 allegations they could include in a further amended complaint. Cf. Carolina Cas. Ins. Co. v. 20 Team Equip., Inc., 741 F.3d 1082, 1086 (9th Cir. 2014) (reversing dismissal for lack of 21 jurisdiction without leave to amend when amendment could have cured jurisdictional problems). 22 The credit union’s critiques of plaintiffs’ jurisdictional evidence do not show any potential 23 amendment would be an exercise in futility. See Reply Dismiss at 4–8. Those arguments are 24 better tested in a renewed motion to dismiss or for summary judgment following amendment. See 25 Ortega v. Chick-fil-A, Inc., No. 21-0845, 2021 WL 5281031, at *2 (E.D. Cal. Nov. 12, 2021) 26 (“Courts within this District and the Ninth Circuit often defer assessments of a proposed 27 amendment’s legal substance until after those amendments are filed and a defendant formally 28 moves to dismiss.”). 1 The parties disagree whether a supplemental complaint would be an appropriate pleading 2 for some of plaintiffs’ jurisdictional claims. Compare Opp’n Dismiss at 8–9 (citing Northstar 3 Fin. Advisors Inc. v. Schwab Invs., 779 F.3d 1036 (9th Cir. 2015)) with Reply Dismiss at 7 4 (same). Plaintiffs have not shown a supplemental complaint would be appropriate, as they have 5 not explained what allegations they would include in such a pleading, but this order does not 6 preclude a future motion for leave to file a supplemental complaint. 7 Because the court dismisses the first amended complaint for lack of jurisdiction, the court 8 need not and does not decide whether the claims within it are also moot, nor whether this district 9 is the proper venue for the dismissed claim. The court also denies as moot the pending motion for 10 reconsideration. 11 III. CONCLUSION 12 The motion to dismiss (ECF No. 72) is granted. The first amended complaint is 13 dismissed for lack of subject matter jurisdiction with leave to amend. Any amended complaint 14 must be filed within twenty-one days. 15 The motion to reconsider (ECF No. 71) is denied as moot. 16 IT IS SO ORDERED. 17 DATED: December 4, 2024.