Cesar A. Betancourt v. New Century Mortgage Corporation et al, No. 1:2016cv01855 - Document 13 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Third Amended Complaint be Dismissed Without Leave to Amend for Failure to State a Claim, 12 . Matter referred to Judge Ishii. Objections to F&R due within twenty-one (21) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 3/19/2018. (Timken, A)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 CESAR A. BETANCOURT, Plaintiffs, 13 14 15 16 17 18 Case No. 1:16-cv-01855-AWI-SKO FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S THIRD AMENDED COMPLAINT BE DISMISSED WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM v. NEW CENTURY MORTGAGE CORPORATION, et al., (Doc. 12) OBJECTIONS DUE: 21 DAYS Defendants. _____________________________________/ 19 20 I. PROCEDURAL BACKGROUND On December 9, 2016, Plaintiff Cesar A. Betancourt (“Plaintiff”), proceeding pro se and in 21 forma pauperis, filed a complaint against Defendants New Century Mortgage Corporation, Wells 22 23 24 25 Fargo Bank, Quality Loan Services Corporation, American’s Servicing Co., and First American Title (collectively “Defendants”). (Doc. 1 at 1, 4.) On April 6, 2017, the undersigned granted Plaintiff’s application to proceed in forma pauperis. (Doc. 5.) However, on April 12, 2017, the undersigned dismissed Plaintiff’s complaint, finding various deficiencies with it. (Doc. 6.) 26 Plaintiff was granted thirty (30) days leave to file an amended complaint, and the undersigned 27 28 gave the following pertinent guidance for curing the deficiencies identified in the order: “Should 1 Plaintiff file an amended complaint, . . . he must (1) name all defendants in the caption and (2) 2 include factual allegations against each defendant in the body of the complaint.” (Id. at 3.) On April 26, 2017, Plaintiff filed a one-page first amended complaint (“FAC”).1 (Doc. 7.) 3 4 The FAC alleged facts related to Plaintiff’s home mortgage, including that Wells Fargo denied 5 Plaintiff’s request for a loan modification, that Wells Fargo commenced a lawsuit against Plaintiff 6 in state court, and that someone falsified a $20,000 lien against Plaintiff’s home. (Doc. 7 at 1.) On June 16, 2017, the undersigned found that Plaintiff’s FAC, like his original complaint, 7 8 failed to identify “which of the[] parties [mentioned in the amended complaint] are the defendants 9 in this matter.” (Doc. 8 at 5.) The undersigned also found that the FAC “fail[ed] to identify 10 Plaintiff’s causes of action.” The undersigned granted Plaintiff a second opportunity to amend his 11 complaint within thirty (30) days, curing the pleading deficiencies identified in the order. (Id. at 12 5-6.) The undersigned reiterated the following guidance given in the order dismissing Plaintiff’s 13 original complaint: (1) “name all defendants in the caption;” (2) “include factual allegations 14 against each defendant in the body of the complaint;” and (3) “identify the federal statute under 15 which Plaintiff’s claim proceeds.” (Id. at 4-5) (internal quotation and citation omitted).) The 16 undersigned further encouraged Plaintiff to1 “use a template for the amended complaint . . . to 17 clearly identify the defendants in this case.” (Id. at 5.) On July 13, 2017, Plaintiff filed a second amended complaint (“SAC”). (Doc. 10.) The 18 19 SAC contained three handwritten pages and approximately 240 pages of supporting documents, 20 and it named the following parties as defendants: (1) two individuals with Wells Fargo (Karen 21 Lee, Vice President and William Pinkerton, Senior Vice President); (2) two individuals with 22 America’s Servicing Company (Randy Bockenstedt, Senior Vice President and Justin Forbes, 23 Customer Care and Recovery Group); (3) the Real Estate Law Center and two lawyers (Ruben 24 Moreno and Randy Risner) who “were hired on [Plaintiff’s] behalf to assist [him]” with obtaining 25 a home loan; (4) the Office of the Controller of the Currency Consumer Financial Protection 26 Bureau; and (5) “[a]gents assigned to contact Modification Dept.” (Id. at 1, 10, 25.) The SAC 27 28 1 Although the amended complaint itself was only a single page, it included 33 pages of supporting documents purportedly related to Plaintiff’s mortgage. (See Doc. 7.) 2 1 alleged “negligence by the bank/servicing company because multiple parties [Plaintiff] shared 2 information with were unable to follow-up [his] paperwork,” and that such acts were committed 3 “on purpose to benefit [the] lender,” and “only caused more fees [to be] added to [Plaintiff’s] 4 mortgage.” (See id. at 1, 16, 25). 5 On December 27, 2017, the undersigned found that Plaintiff’s SAC failed to identify which 6 parties committed which wrongful acts, and it failed to establish subject matter jurisdiction on the 7 basis of either federal question or diversity of citizenship. (Doc. 11 at 5-8.) The undersigned 8 granted Plaintiff a third opportunity to amend his complaint within thirty (30) days, curing the 9 pleading deficiencies identified in the order. (Id. at 8-9.) The undersigned provided Plaintiff with 10 the following guidance: If Plaintiff elects to file a third amended complaint, the Court encourages Plaintiff to specifically identify (1) the federal law(s) and/or state law(s) which he believes was violated by the acts alleged, (2) Plaintiff’s state of citizenship and the state of citizenship for each party named in the Second Amended Complaint, (3) the amount of money in controversy in this case, (4) the role each party named in the Second Amended Complaint played in the acts alleged, and (5) how the acts alleged violate the law(s) identified. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (Id. at 8.) On January 25, 2018, Plaintiff filed a third amended complaint (“TAC”). (Doc. 12.) After screening Plaintiff’s TAC, the undersigned finds that despite the explicit recitation of the deficiencies of Plaintiff’s original complaint, FAC, and SAC, Plaintiff has failed to state any cognizable federal claims. Accordingly, the undersigned RECOMMENDS that Plaintiff’s TAC be DISMISSED without leave to amend. II. LEGAL STANDARD In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen each case, and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the amended complaint fails to 28 3 1 state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint 2 can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 3 The Court’s screening of the amended complaint under 28 U.S.C. § 1915(e)(2) is governed 4 by the following standards. A complaint may be dismissed as a matter of law for failure to state a 5 claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a 6 cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 7 1990). A plaintiff must allege a minimum factual and legal basis for each claim that is sufficient 8 to give each defendant fair notice of what plaintiff’s claims are and the grounds upon which they 9 rest. See, e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. 10 Block, 932 F.2d 795, 798 (9th Cir. 1991). 11 In determining whether a complaint states a claim on which relief may be granted, 12 allegations of material fact are taken as true and construed in the light most favorable to the 13 plaintiff. See Love v. U.S., 915 F.2d 1242, 1245 (9th Cir. 1989). Since Plaintiff is appearing pro 14 se, the Court must also construe the allegations of the amended complaint liberally and afford 15 Plaintiff the benefit of any doubt. See Karim–Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th 16 Cir. 1988). However, “the liberal pleading standard . . . applies only to a plaintiff’s factual 17 allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a 18 civil rights complaint may not supply essential elements of the claim that were not initially pled.” 19 Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of 20 Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 21 Further, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 22 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 23 action will not do . . . . Factual allegations must be enough to raise a right to relief above the 24 speculative level.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal 25 citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (To avoid dismissal for 26 failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to 27 ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the 28 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 4 1 defendant is liable for the misconduct alleged.”) (internal citations omitted). 2 III. 3 PLAINTIFF’S THIRD AMENDED COMPLAINT The TAC is comprised of ten pages. (See generally Doc. 12.) Plaintiff names Wells Fargo 4 Bank, N.A., Americas Servicing Company, Quality Loan Service Corp., and Does 1 through 50 as 5 defendants, and alleges that each defendant regularly conducted business in California. (Id. ¶¶ 2, 6 4-7.) Plaintiff alleges that in 2005 he obtained a mortgage loan for $600,000 to purchase a single7 family home in Tulare, California. (Id. ¶¶ -10.) The interest rate on the loan was fixed at 7.0%. 8 (Id. ¶ 10.) Plaintiff contends that the loan was “high-cost, high-risk,” and that he was “steered 9 into” it by “usurious terms.” (Id. ¶ 11.) In 2010, Plaintiff’s loan was modified, reducing the 10 interest rate to 4.0%. (Id. ¶ 12.) However, Plaintiff’s monthly payment amount remained at 11 $3,300, which Plaintiff contends was unaffordable given his monthly gross household income of 12 $4,200. (Id. ¶¶ 12-13.) Plaintiff alleges that, as a result, he is in danger of foreclosure.2 (Id. ¶ 19.) 13 Based on these allegations, Plaintiff attempts to state three causes of action. First, Plaintiff 14 asserts that Defendants are liable for negligence under California law because the original loan 15 was unaffordable. He contends that both the original loan and loan modification “exacerbated 16 Plaintiff’s financial position with terms designed to result in a forfeiture of Plaintiff’s property” 17 and Plaintiff faces foreclosure as he owes a principal balance of $577,000. (Doc. 12. ¶¶ 15-18.) 18 As to the second cause of action, Plaintiff claims that Defendants engaged in unfair 19 competition in violation of California Business and Professions Code § 17200 et seq. (See 20 generally Doc. 12. ¶¶ 22-31.) In particular, Plaintiff alleges a deceptive pattern and practice by 21 Defendants of employing unfair, overly aggressive mortgage loan servicing, concealing material 22 facts with regard to high interest rates, charging unfair fees, falsely advising borrowers that they 23 qualify for loan modifications, obtaining premature loan defaults, and illegally foreclosing on 24 2 Plaintiff appears to have omitted from the TAC certain facts that he previously alleged in FAC and SAC. In 25 particular, Plaintiff does not include in the TAC the previously alleged fact that, following his loan modification in 26 27 28 2010, Plaintiff applied for a further loan modification, which Wells Fargo denied. (See Doc. 7 at 1.) Nor does Plaintiff allege in the TAC the previously alleged fact that Wells Fargo has commenced a foreclosure action against Plaintiff in state court. (See id.) The Court cautioned Plaintiff in its prior orders dismissing Plaintiff’s complaint and amended complaints that any newly amended complaint “must be ‘complete itself without reference to the prior or superseding pleading,’” and that the prior or superseding pleadings will no longer “serve[] any function in this case.” (Doc. 11 at 9 (quoting E.D. Cal. L.R. 220); see also Doc. 6 at 5.) As such, the Court will not consider these facts. To the extent that these facts were alleged here, the TAC would still suffer the incurable defects set forth below. 5 1 residential properties. (Id. ¶¶ 23, 25.) Plaintiff further alleges that Defendants induced him into 2 obtaining “mortgages for which he was not qualified,” and inflated his home valuation. (Id. ¶ 22.) 3 According to Plaintiff, he suffered financial injury as a result of Defendants’ practices. (Id. ¶ 27.) 4 Plaintiff’s third cause of action claims that Defendants violated “[t]he implied covenant of 5 good faith and fair dealing . . . contained in the Deed of Trust and Promissory Note.” (Doc. 12 ¶ 6 33.) Plaintiff alleges that Defendants “induced” him to stop paying his mortgage, as that would 7 help him qualify for a loan modification. (Id. ¶ 34-35.) Plaintiff alleges that Defendants’ conduct 8 was designed to give Defendants an unfair advantage over Plaintiff in foreclosing on his home and 9 profiting from such foreclosure. (Id. ¶ 37.) 10 Plaintiff seeks “general damages, special damages, and any other compensation or 11 disgorgement of no more than $750,000,” restitution, and “a reduction in the interest rate . . . as 12 well as a reduction in the principal balance of $577,000.00.” (Doc. 12 ¶¶ 20, 28-31.) 13 14 IV. DISCUSSION The TAC suffers the same deficiencies as Plaintiff’s SAC in that it fails to allege facts 15 establishing the Court’s subject matter jurisdiction over the matter. Federal courts have no power 16 to consider claims for which they lack subject matter jurisdiction. Bender v. Williamsport Area 17 Sch. Dist., 475 U.S. 534, 541 (1986); see also Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 18 (9th Cir. 2006) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). In 19 civil disputes, federal district courts are vested with subject matter jurisdiction over cases that pose 20 a federal question, 28 U.S.C. § 1331, and cases in which there exists diversity of citizenship 21 between the parties, 28 U.S.C. § 1332. See also Montana–Dakota Util. Co. v. Northwestern Pub. 22 Serv. Co., 341 U.S. 246, 249 (1951) (“The Judicial Code, in vesting jurisdiction in the District 23 Courts, does not create causes of action, but only confers jurisdiction to adjudicate those arising 24 from other sources which satisfy its limiting provisions.”); White v. Paulsen, 997 F. Supp. 1380, 25 1382–83 (E.D. Wash. 1998) (citing In re Estate of Ferdinand Marcos, Human Rights Litig., 25 26 F.3d 1467, 1474–75 (9th Cir. 1994)). 27 The Court has an independent duty to consider its own subject matter jurisdiction, whether 28 or not the issue is raised by the parties, and it must dismiss an action over which it lacks 6 1 jurisdiction. Fed. R. Civ. P. 12(h)(3); see also Cal. Diversified Promotions, Inc. v. Musick, 505 2 F.2d 278, 280 (9th Cir. 1974) (“It has long been held that a judge can dismiss sua sponte for lack 3 of jurisdiction.”). The burden is on the federal plaintiff to allege facts establishing that jurisdiction 4 exists to hear his claims. 5 A. Plaintiff Fails to Allege Facts Establishing the Existence of a Federal Question. 6 Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over “all 7 civil actions arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises 8 under’ federal law either where federal law creates the cause of action or ‘where the vindication of 9 a right under state law necessarily turn[s] on some construction of federal law.’” Republican 10 Party of Guam v. Gutierrez, 227 F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. 11 Constr. Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). “The presence or absence of federal12 question jurisdiction is governed by the well-pleaded complaint rule.” Caterpillar Inc. v. 13 Williams, 482 U.S. 386, 392 (1987); see also California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 14 831, 838 (9th Cir. 1994) (the “well-pleaded complaint rule” requires a plaintiff to properly plead a 15 federal question to obtain federal jurisdiction on that basis). Under the well-pleaded complaint 16 rule, “federal jurisdiction exists only when a federal question is presented on the face of the 17 plaintiff’s properly pleaded complaint.” Id. 18 Here, the undersigned previously instructed Plaintiff that if he intended to raise any federal 19 claims—particularly federal consumer protection law claims—he “should clearly identify the 20 particular federal consumer protection law(s) under which he seeks relief, and he should ‘provide 21 succinct and coherent factual allegations supporting’ his entitlement to relief under such law(s).” 22 (Doc. 11 at 7 (citing Futrell v. Superior Court of Sacramento Cnty., No, 2:10-cv-2425 JAM KJN, 23 2011 WL 666494, at *2 (E.D. Cal. Feb. 14, 2011)).) Despite that instruction, Plaintiff’s TAC does 24 not identify any federal law which he believes was violated by the acts alleged in the TAC. 25 Rather, the TAC purports to raise only claims of negligence and unfair competition under 26 California law, as well as a contract claim under state law that Defendants violated the implied 27 covenant of good faith and fair dealing. (Doc. 12 ¶¶ 15-18, 22-31, 33); see, e.g., Garcia-Cardenas 28 v. Immigration Legal Services, APC, 1:13-cv-01065-AWI-SKO, 2013 WL 4542223, at *2 (E.D. 7 1 Cal. Aug. 27, 2013) (finding no federal question where plaintiff’s complaint raised a claim for 2 breach of contract) (citing Plaza Residential Parcel Homeowners Ass’n v. Hoan, 376 F.3d 831, 3 840 (9th Cir. 2004) (claims for “damages stemming from alleged breach of contract” ordinarily 4 arise under state law); Gonzales v. City of Clovis, 1:12-cv-00053, 2012 WL 1292580, at *3 (E.D. 5 Cal. Apr. 3, 2012) (finding no federal question where complaint asserted claims of negligence, 6 intentional infliction of emotional distress, and common law assault, and violations of the 7 California Constitution, the California Civil Code, the California Government Code, and the 8 California Penal Code). In fact, Plaintiff concedes in the TAC that it is his “desire and decision to 9 avoid federal jurisdiction by avoiding any matters involving a federal question in this Complaint . . 10 . .” (Id. ¶¶ 20, 31, 41.) 11 Given these facts, as well as the three prior opportunities to state a cognizable federal 12 claim, Plaintiff has demonstrated no reasonable possibility—or desire—that he can establish a 13 cognizable federal claim. Accordingly, the undersigned recommends that Plaintiff’s TAC be 14 dismissed, and that Plaintiff be granted no further leave to amend the complaint in order to state 15 federal question jurisdiction. See, e.g., Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 16 1996) (dismissing claim with prejudice as futile where plaintiffs would have been unable to state a 17 cognizable claim); Alfaro v. Alfaro, 2006 WL 3497321, at *1-2 (E.D. Cal. Dec. 5, 2006) 18 (dismissing complaint with prejudice where there was no reasonable possibility that plaintiff could 19 state a federal claim). 20 B. Plaintiff Fails to Allege Facts Establishing Diversity of Citizenship. 21 The undersigned next turns to diversity jurisdiction. The undersigned previously 22 instructed Plaintiff that, to the extent he seeks to raise state law claims only, he must identify the 23 particular state laws, describe how the acts committed by Defendants violated those state laws, and 24 allege facts establishing that diversity of citizenship between the parties exists. (Doc. 11 at 7.) 25 Plaintiff does indeed identify in the TAC the state laws under which he seeks relief: he raises 26 claims of negligence, unfair competition, and breach of contract under California law. However, 27 Plaintiff does not allege facts establishing diversity of citizenship. 28 // 8 1 Pursuant to 28 U.S.C. § 1332, federal district courts have subject matter jurisdiction on the 2 basis of diversity of citizenship where the matter in controversy exceeds $75,000 and is between 3 “citizens of a State and citizens or subjects of a foreign state.” In other words, the plaintiff and 4 each defendant in such a case must be citizens of different states to satisfy the complete diversity 5 requirement. Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 267, 2 L. Ed. 435 (1806) (no plaintiff 6 can be a citizen of the same state as any of the defendants); see also Exxon Mobil Corp. v. 7 Allapattah Servs., Inc. 545 U.S. 546, 553 (2005) (one instance of common citizenship between 8 plaintiffs and defendants will prevent federal jurisdiction); Owen Equip, & Erection Co. v. Kroger, 9 437 U.S. 365, 373 (1978) (“[c]omplete diversity” means that all plaintiffs must have citizenship 10 different than all defendants); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 11 (9th Cir. 2003) (diversity “requires that the parties be in complete diversity and the amount in 12 controversy exceed $75,000”). For diversity purposes, a corporation is “deemed to be a citizen of 13 every state . . . by which it has been incorporated and of the State . . . where it has its principal 14 place of business.” 28 U.S.C. § 1332(c)(1). “Plaintiff must allege, in the pleadings, the facts 15 essential to show proper and complete diversity jurisdiction in order to maintain standing in 16 federal district court.” Alberto v. Bank of America, Nat. Assoc., 2012 WL 5355663, at *1 (E.D. 17 Cal. Oct. 29, 2012) (citing Fifty Assocs. v. Prudential Ins. Co. Of America, 446 F.2d 1187, 1190 18 (9th Cir. 1970)). 19 Measured by these requirements, Plaintiff’s TAC is insufficient to confer jurisdiction on 20 the Court. Plaintiff, a citizen of California, names three defendants, Wells Fargo Bank, N.A., 21 Americas Servicing Company, and Quality Loan Service Corp, in this lawsuit. (Doc. 12 ¶¶ 3-6.) 22 Plaintiff alleges that Wells Fargo is “organized under the laws of the Unites States, doing business 23 in California as a residential lender.” (Id. ¶ 4.) Plaintiff alleges that Americas Servicing Company 24 “regularly conducted business in the state of California as a residential loan servicer.” (Id. ¶ 5.) 25 Plaintiff alleges that Quality Loan Service Corp’s address is located in San Diego, California. (Id. 26 ¶ 6.) As Plaintiff plainly alleges that he and each defendant are citizens of California, complete 27 diversity is lacking. The undersigned therefore recommends that Plaintiff’s TAC be dismissed for 28 lack of diversity of citizenship, and that Plaintiff be granted no further leave to amend the 9 1 complaint to allege diversity jurisdiction. See, e.g., Jefferson v. City of Fresno, 1:16-cv-012982 LJO-SKO, 2016 WL 8731385, at *3 (E.D. Cal. Nov. 4, 2016) (dismissing complaint with 3 prejudice for lack of diversity where plaintiff alleged that he was a citizen of California and that 4 the defendant was a citizen of California); Smith v. British Petroleum of America, No. Civ. S-075 0293 LKK DAD PS, 2007 WL 1557464, at *3 (E.D. Cal. May 29, 2007) (dismissing complaint 6 with prejudice where plaintiff and two of the defendants were citizens of California, concluding 7 that “[d]ismissal of plaintiff’s claim as to all defendants who are California citizens would not cure 8 the defect because diversity jurisdiction was lacking at the time of filing the suit”). 9 C. 10 Amendment Would Be Futile. While leave to amend must be freely given, the Court is not required to permit futile 11 amendments. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Reddy v. 12 Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 1990); Rutman Wine Co. v. E. & J. Gallo 13 Winery, 829 F.2d 729, 738 (9th Cir. 1987); Klamath–Lake Pharm. Ass’n v. Klamath Med. Serv. 14 Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983). Plaintiff’s TAC does not set forth any viable federal 15 claim, nor does it allege the existence of complete diversity between the parties. Because Plaintiff 16 has failed to plead facts invoking the Court’s jurisdiction, the TAC should be dismissed. 17 Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) (“A party invoking the federal court’s 18 jurisdiction has the burden of proving the existence of subject matter jurisdiction.”) A fourth 19 opportunity for Plaintiff to amend his complaint would be futile because Plaintiff expressly denied 20 the existence of a federal question, and there is no set of facts Plaintiff could allege in a fourth 21 amended complaint to establish jurisdiction over his claims on the basis of diversity. Accordingly, 22 the action should be dismissed with prejudice and without leave to amend. 23 V. CONCLUSION AND RECOMMENDATION 24 Based on the foregoing, it is HEREBY RECOMMENDED that: 25 1. 26 27 Plaintiffs’ third amended complaint be DISMISSED without leave to amend for failure to state a cognizable federal claim; and 2. The case be CLOSED. 28 10 1 The Court further DIRECTS the Clerk to send a copy of this order to Plaintiffs at their 2 respective addresses listed on the docket for this matter. 3 These findings and recommendations are submitted to the district judge assigned to this 4 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty-one 5 (21) days of service of this recommendation, any party may file written objections to these 6 findings and recommendations with the Court and serve a copy on all parties. Such a document 7 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 8 district judge will review the magistrate judge’s findings and recommendations pursuant to 28 9 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 10 time may waive the right to appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 834, 11 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 13 IT IS SO ORDERED. 14 Dated: 15 March 19, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 11 .
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