United States District Court, W.D. Washington, Seattle
ORDER DISMISSING WITH LEAVE TO AMEND
L. ROBART United Stakes District Judge.
the court is Defendants' motion to dismiss for lack of
subject matter jurisdiction. (Mot. (Dkt. #15).) Plaintiff
Annette Blanchard, who is proceeding pro se, opposes
Defendants' motion. (Resp. (Dkt. 17).) Having considered
the parties' briefing, the relevant portions of the
record, and the applicable law, the court GRANTS
Defendants' motion to dismiss and DISMISSES this case
with leave to amend, as more fully described below.
BACKGROUND & ANALYSIS
Blanchard sues Defendants, which are multiple of mortgage-
and trustee-related entities, for several of state law
claims. (See Compl. (Dkt. # 6).) She asserts that
subject matter jurisdiction is based on complete diversity.
(Id. at 3.)
November 16, 2016, the court ordered Ms. Blanchard to show
cause why her complaint should not be dismissed for lack of
subject matter jurisdiction. (OSC (Dkt. #10).) The court
informed Ms. Blanchard about the complete diversity
requirement and indicated that she failed to adequately
allege Defendant Ocwen Loan Servicing, LLC's
("Ocwen") domicile. (Id. at 1-2.) Ms.
Blanchard responded to the order to show cause by indicating
the domicile of Ocwen's members. (OSC Resp. (Dkt. # 11)
at 2.) The allegations in Ms. Blanchard's complaint in
combination with the assertions in her response to the order
to show cause adequately alleged complete diversity.
Defendants now mount a factual attack on subject matter
jurisdiction. (See Mot.)
Subject Matter Jurisdiction
a factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke
federal jurisdiction." Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "Once
the moving party has converted the motion to dismiss into a
factual motion ..., the party opposing the motion must
furnish affidavits or other evidence necessary to satisfy its
burden of establishing subject matter jurisdiction."
Savage v. Glendale Union High School, Dist. No. 205,
Maricopa Cty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
conjunction with their motion to dismiss, Defendants filed
the corporate registration of Defendant North Cascade Trustee
Services, Inc. ("NCTS"). (Req. (Dkt. #15-1) Ex. F.)
That registration indicates that NCTS is incorporated, and
therefore domiciled, in Washington State. (See id.)
In response, Ms. Blanchard argues that NCTS "is an
entity affiliated with, and in conjunction with, HSBC Bank
("dbf HSBC Bank"), USA, N.A., the effective
domicile is therefore New York state, and not limited simply
to the state of Washington, whereby diversity is maintained
among all of the parties to the Complaint."
(Id. at 2.) Ms. Blanchard cites no authority, and
the court identifies no authority, for the proposition that
NCTS's asserted affiliation with HSBC alters NSCT's
domicile for purposes of assessing diversity jurisdiction.
(See generally id.) Accordingly, the court grants
Defendants' motion and dismisses Ms. Blanchard's
complaint for lack of subject matter
Leave to Amend
court dismisses a pro se plaintiffs complaint, leave
to amend is j mandatory unless it is absolutely clear that
amendment could not cure the defects in the complaint.
Lucas v. Dep 't of Corr., 66 F.3d 245, 248 (9th
Cir. 1995). The court has already provided Ms. Blanchard
leave to amend her complaint to adequately allege diversity
jurisdiction. (See OSC.) In her response, she
asserted the domiciles of Ocwen's members, but she
declined to amend her complaint because, in Ms.
Blanchard's view, her response did "NOT alter any
allegations or parties to this action." (OSC Resp. at 2
(emphasis in original).) Contrary to Ms. Blanchard's
understanding, she bears the burden of alleging sufficient
facts in her complaint for the court to conclude that it has
subject matter jurisdiction. See Fed. R, Civ. P.
12(b)(1); Meyer, 373 F.3d at 1039 (discussing a
plaintiffs burden in a facial attack on subject matter
jurisdiction). Ms. Blanchard appears to have misunderstood
the court cannot conclude that amendment would be futile. For
instance, Ms. Blanchard could amend her complaint to drop
HSBC as a defendant and allege the domicile of Ocwen's
members. Such amendment would cure the lack of
complete diversity that the court and Defendants have
identified. In light of Ms. Blanchard's pro se
status, the court will permit her to amend her complaint to
remedy the deficiencies identified in this order and in the
court's November 16, 2016, order. (See OSC.) Ms.
Blanchard must file any amended complaint no later than
February 17, 2017. The court cautions Ms. Blanchard, however,
that it will interpret any future failure to adequately
support subject matter jurisdiction as an indication that
further amendment would be futile. See Flowers v. First
Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002). If Ms.
Blanchard fails to timely amend her complaint to remedy the
deficiencies identified in this order, the court will dismiss
this case without leave to amend.
Initial Case Deadlines
Blanchard also requests an extension of the initial case
scheduling deadlines. (Req. (Dkt. # 19).) Several of those
deadlines have already passed, and Defendants were forced to
file a status report without Ms. Blanchard's input
because, despite their best efforts, they could not contact
Ms. Blanchard. (See Status Rep. (Dkt. #18).) The
court vacates its December 20, 2016, scheduling order (Dkt.
#12) and will reset the initial case scheduling deadlines
after reviewing Ms. Blanchard's amended complaint, if she
chooses to file one. The ...