Attilio Armeni v. America's Wholesale Lender et al
Filing
38
MINUTES (IN CHAMBERS): ORDER by Judge David O. Carter: GRANTING IN PART MOTION TO DISMISS AND DISMISSING FOR LACK OF SUBJECT MATTER JURISDICTION 28 : (See document for details.) JS-6 (rla)
<![CDATA[
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. SACV 11-1317 DOC (SHx)
Date: May 2, 2012
Title: ATTILIO ARMENI -V- AMERICA’S WHOLESALE LENDER, ET AL.
PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk
Not Present
Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
NONE PRESENT
NONE PRESENT
PROCEEDING (IN CHAMBERS): GRANTING IN PART MOTION TO DISMISS AND
DISMISSING FOR LACK OF SUBJECT MATTER
JURISDICTION
Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint
(Docket 25). After considering the moving, opposing, and replying papers thereon, and for the reasons
stated below, the Court hereby GRANTS IN PART the Motion to Dismiss and sua sponte DISMISSES
WITH PREJUDICE the TAC for lack of subject matter jurisdiction.
I. BACKGROUND
For a full recitation of the facts of this case, refer to the Court’s Order Granting in Part
and Denying in Part Defendants’ previous Motion to Dismiss (Docket 21) (“First MTD Order”).
Plaintiff filed a Third Amended Complaint (“TAC”) on February 15, 2012 (Docket 25) which asserts
claims against Defendants America’s Wholesale Lender (“AWL”), Deutsche Bank National Trust
Company, as Trustee for the Harborview Mortgage Loan Trust 2006-5 (“Deutsche”), and Bank of
America, as Successor by Merger to BAC Home Loans Servicing, LP (“BAC”) (collectively,
“Defendants”) for declaratory relief, violation of the Fair Debt Collection Practices Act (“FDCPA”),
violation of Cal. Bus. and Prof. Code Section 17200 (“UCL”), breach of contract, and breach of the
implied covenant of good faith and fair dealing.
II. LEGAL STANDARD
MINUTES FORM 11 DOC
CIVIL - GEN
Initials of Deputy Clerk: jcb
Page 1 of 3
Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a
plaintiff’s allegations fail to set forth a set of facts which, if true, would entitle the complainant to relief.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(holding that a claim must be facially plausible in order to survive a motion to dismiss). The pleadings
must raise the right to relief beyond the speculative level; a plaintiff must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550
U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). On a motion to dismiss, this court
accepts as true a plaintiff’s well-pled allegations and construes all inferences in the light most favorable
to the plaintiff. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
The court is not required to accept as true legal conclusions couched as factual allegations. Iqbal, 556
U.S. at 678.
In evaluating a Rule 12(b)(6) motion, review is limited to the contents of the complaint
and material properly submitted with the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752,
754 (9th Cir. 1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19
(9th Cir. 1990). Under the incorporation by reference doctrine, the court may also consider documents
“whose contents are alleged in a complaint and whose authenticity no party questions, but which are
not physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994),
overruled on other grounds by 307 F.3d 1119, 1121 (9th Cir. 2002). The court may disregard
allegations in the body of the complaint that are contradicted by documents attached to the complaint as
exhibits. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
Additionally, Federal Rule of Evidence 201 allows the court to take judicial notice of
certain items without converting the motion to dismiss into one for summary judgment. Barron v.
Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). The court may take judicial notice of facts “not subject to
reasonable dispute” because they are either: “(1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201; see also Lee v. City of Los Angeles, 250 F.3d
668, 689 (9th Cir. 2001) (noting that the court may take judicial notice of undisputed “matters of public
record”), overruled on other grounds by 307 F.3d 1119, 1125-26 (9th Cir. 2002). The court may
disregard allegations in a complaint that are contradicted by matters properly subject to judicial notice.
Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).
Dismissal without leave to amend is appropriate only when the court is satisfied that the
deficiencies in the complaint could not possibly be cured by amendment. Jackson v. Carey, 353 F.3d
750, 758 (9th Cir. 2003); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (holding that dismissal
with leave to amend should be granted even if no request to amend was made). Rule 15(a)(2) of the
Federal Rules of Civil Procedure states that leave to amend should be freely given “when justice so
requires.” This policy is applied with “extreme liberality.” Morongo Band of Mission Indians v. Rose,
893 F.2d 1074, 1079 (9th Cir. 1990).
MINUTES FORM 11 DOC
CIVIL - GEN
Initials of Deputy Clerk: jcb
Page 2 of 3
III. DISCUSSION
Plaintiff alleges that Deutsche and BAC have violated the Fair Debt Collections Practices
Act, 15 U.S.C., § 1692(e) (“FDCPA”). Plaintiff’s FDCPA claim was originally dismissed without
prejudice in the Court’s First MTD Order because Plaintiff did not allege that his loan was in default
when any Defendant obtained the right to collect payments on the loan, as required by the FDCPA. 15
U.S.C. § 1692a(6)(F)(iii). Plaintiff has remedied that deficiency and now alleges that both Deutsche and
BAC are debt collectors because they “gained the right to collect Plaintiff’s debt obligation at a time
they claim Plaintiff was in default.” TAC, ¶ 52.
Plaintiff has still failed, however, to allege that either Defendant is a “debt collector”
within the meaning of the FDCPA. The “activity of foreclosing on [a] property pursuant to a deed of
trust is not the collection of a debt within the meaning of the” FDCPA. Tina v. Countrywide Home
Loans, 2008 WL 4790906, at *6 (S.D. Cal. Oct. 30, 2008) (quoting Hulse v. Ocwen Fed. Bank, FSB,
195 F. Supp. 2d 1188, 1204 (D. Or. 2002)). Because that is exactly the activity that Deutsche and BAC
are seeking to undertake, they are not debt collectors within the meaning of the statute.
Plaintiff’s FDCPA claim is hereby DISMISSED WITH PREJUDICE.
Because Plaintiff’s sole federal claim is hereby dismissed with prejudice1 and because
Plaintiff does not allege diversity of citizenship, this Court declines to exercise supplemental
jurisdiction over Plaintiff’s remaining state court claims.
IV. DISPOSITION
For the aforementioned reasons, Plaintiff’s Third Amended Complaint is DISMISSED
WITH PREJUDICE for lack of subject matter jurisdiction.
The Clerk shall serve this minute order on all parties to the action.
1
The fact that Plaintiff seeks relief under the federal Declaratory Judgment Act
does not confer jurisdiction upon this Court. Skelly Oil Co. v. Phillips Petroleum Co., 339
U.S. 667, 671 (1950). Such a result is logical, as parties cannot simply plead a federal
cause of action for declaratory relief as to a state law controversy as an end run around
the restrictions of federal subject matter jurisdiction.
MINUTES FORM 11 DOC
CIVIL - GEN
Initials of Deputy Clerk: jcb
Page 3 of 3
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
