Toner v. National City Mortgage Co.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 || DEBRA TONER, an individual, Case No.: 22cv217-JO-AHG 11 Plaintiff,

3 ORDER DISMISSING ACTION 14 NATIONAL CITY MORTGAGE CO et al., 15 Defendants. 16 17 18 19 20 In this foreclosure dispute, Defendants Rachael Callahan and 3139 Mount Whitney 21 ||Rd. Trust Dated 06/14/2021, U.S. Financial L.P. as Trustee, moved to dismiss pro se 22 || Plaintiff Debra Toner’s Complaint on various grounds, including lack of subject matter 23 ||jurisdiction under Federal Rule of Civil Procedure 12(b)(1). In an order filed on April 29, 24 2022, the Court issued an order to show cause why this case should not be dismissed for 25 || lack of diversity jurisdiction. For the reasons stated below, the Court dismisses the action 26 and instructs the Clerk of Court to close the file. 27 28

1 I. BACKGROUND 2 On February 16, 2022, pro se Plaintiff Debra Toner filed a Complaint against 3 || Defendants (1) Rachael Callahan; (2) 3139 Mount Whitney Rd. Trust Dated 06/14/2021, 4 ||U.S. Financial L.P. as Trustee (“U.S. Financial’); (3) Select Portfolio Servicing, Inc 5 || (“SPS”); (4) the Bank of New York Mellon, as Indenture Trustee, on behalf of the holders 6 ||of the CSMC Trust 2010-16 mortgage-backed notes and certificates, Series 2010-16 7 ||\(“BONY”); (5) National Default Servicing Corporation (“National Default”); (6) National 8 ||City Mortgage; and (6) Richmond Monroe Group, regarding the alleged wrongful 9 foreclosure of her home. Dkt. 1 § 2-13. Plaintiff pleads federal jurisdiction based on 10 || diversity under 28 U.S.C. § 1332. Id. §§ 14-18. In her Complaint, Plaintiff states that she 11 |/is a citizen of California, that National City Mortgage is a citizen of Ohio, and that 12 || Plaintiff's damages exceed $75,000. Id. J] 16-17. 13 On February 25, 2022, Plaintiff filed for a Temporary Restraining Order, which the 14 || Court construed as a Motion for a Preliminary Injunction. Dkts. 9-10. On March 2, 2022, 15 Defendants Rachael Callahan and U.S. Financial filed a Motion to Dismiss on various 16 || grounds, including lack of subject matter jurisdiction under Federal Rule of Civil Procedure 17 |} 12(b)(1). Dkt. 14. On March 14, 2022, Defendants National Default, SPS, BONY, and 18 Richmond Monroe Group separately moved to dismiss on other grounds. Dkt. 16. 19 On April 29, 2022, this Court issued an order finding that the Court lacked federal 20 || question jurisdiction and ordering the parties to show cause why the case should not be 21 |\dismissed for lack of diversity jurisdiction. Dkt. 23. In response, Defendants filed 22 || affidavits stating that Rachael Callahan and U.S. Financial are citizens of California, and 23 || that the remaining Defendants are citizens of other states. Dkts. 24-25. Plaintiff, who had 24 |\already pleaded as a citizen of California, filed a response requesting leave to amend to 25 dismiss all non-diverse Defendants or to state a new federal claim. Dkt. 26. 26 IJ. DISCUSSION 27 The Court cannot hear Plaintiff’s claims because it does not have subject matter 28 jurisdiction. Subject matter jurisdiction is present where a plaintiff adequately pleads

1 jurisdiction under 28 U.S.C. §§ 1331 or 1332. See Arbaugh v. Y&H Corp., 546 U.S. 500, 2 ||513-14 (2006). Under § 1331, the Court has federal question jurisdiction where a plaintiff 3 ||pleads a colorable claim “arising under” federal law. Republican Party of Guam v. 4 || Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002). Under § 1332, the Court has diversity 5 || jurisdiction where there is complete diversity of citizenship and the amount in controversy 6 ||exceeds $75,000. Weeping Hollow Ave. Tr. v. Spencer, 831 F.3d 1110, 1112 (9th Cir. 7 ||2016); Wisconsin Dept. of Corr. v. Schacht, 524 U.S. 381, 388 (1998) (complete diversity 8 ||is present “only if there is no plaintiff and no defendant who are citizens of the same 9 ||State.”). First, for the reasons stated in the Court’s April 29, 2022 order, the Court does 10 ||not have federal question jurisdiction. See Dkt. 23. Second, the parties’ responses to the 11 || order to show cause establish that the Court does not have diversity jurisdiction. Plaintiff, 12 ||Rachael Callahan, and U.S. Financial are all citizens of the same state, and there is no 13 ||complete diversity. See Dkts. 24-26. Because the Court does not have federal question or 14 || diversity jurisdiction, the case must be dismissed for lack of subject matter jurisdiction. 15 Furthermore, the Court cannot consider Plaintiff's request to amend the complaint 16 || to create jurisdiction, and the case must be dismissed. “Subject matter jurisdiction must 17 ||exist as of the time the action is commenced.” Morongo Band of Mission Indians v. 18 || California State Bd. of Equalization, 858 F.2d 1376, 1380-81 (9th Cir. 1988) (“If 19 jurisdiction was lacking, then the court’s various orders, including that granting leave to 20 ||amend the complaint, were nullities.”). “If jurisdiction is lacking at the outset, the district 21 ||court has ‘no power to do anything with the case except dismiss.’” Orff v. United States, 22 ||358 F.3d 1137, 1149-50 (9th Cir. 2004), aff'd, 545 U.S. 596 (2005) (citation omitted). 23 || Although Plaintiff has requested leave to amend to create jurisdiction, either by alleging a 24 || new federal claim or dropping non-diverse parties, subject matter jurisdiction did not exist 25 || at the outset of the litigation and does not exist now. Because the Court lacks subject matter 26 || jurisdiction over the case, the Court cannot consider Plaintiff's request. Even if the Court 27 || were to grant leave to amend, such an order would be a nullity. Therefore, the action is 28 || dismissed.

1 III]. CONCLUSION AND ORDER 2 For the reasons set out above, the Court dismisses the action without leave to amend 3 || for lack of subject matter jurisdiction. The Clerk of Court is instructed to close the file. 4 5 6 IT ISSO ORDERED. 7 8 ||Dated: May 10, 2022 Qe 9 10 Hon. Jinsook Ohta 1 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28