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 This disposition is not designated for publication in the official reports. 1

 Erroneously sued as Barclays Capital Real Estate, Inc. and as HomEq Service Company. 2

Case No. C 09-1995 JF (PVT)

ORDER (1) DENYING PLAINTIFFS’ MOTION FOR REMAND ETC. 

(JFLC2)

**E-Filed July 29, 2010**

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

JOSE R. CARNERO, et al.,

 Plaintiffs,

 v.

LUKE WEAVER, et al.,

 Defendants.

Case Number C 09-1995 JF (PVT)

ORDER (1) DENYING PLAINTIFFS’ 1

MOTION FOR REMAND;

(2) GRANTING DEFENDANTS’

MOTIONS TO DISMISS WITHOUT

LEAVE TO AMEND; (3) DENYING

AS MOOT DEFENDANTS’ MOTION

TO STRIKE; AND (4) DIRECTING

PLAINTIFFS TO SHOW CAUSE

WHY ENTIRE ACTION SHOULD

NOT BE DISMISSED

[re: doc. nos. 58, 59, 61, 70]

Before the Court are (1) a motion for remand filed by Plaintiffs Jose and Marta Carnero;

(2) a motion to dismiss filed by Defendant Fidelity National Title Company (“Fidelity”); (3) a

motion to dismiss filed by Defendants Barclays Capital Real Estate dba HomEq Servicing2

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Case No. C 09-1995 JF (PVT)

ORDER (1) DENYING PLAINTIFFS’ MOTION FOR REMAND ETC. 

(JFLC2)

(“Barclays”) and Deutsche Bank National Trust Company (“Deutsche”); and (4) a motion to 3

strike filed by Barclays and Deutsche and joined by Fidelity. The Court has considered the

moving and responding papers as well as the oral argument presented at the hearing on May 28,

2010. For the reasons discussed below, the motion for remand will be denied, the motions to

dismiss will be granted without leave to amend, the motion to strike will be denied as moot, and

Plaintiffs will be directed to show cause why the entire action should not be dismissed.

I. BACKGROUND

On March 16, 2009, Plaintiffs, a husband and wife proceeding pro se, filed the instant

action in the Santa Clara Superior Court, alleging twenty-two claims under federal and state law

arising out of a mortgage transaction. On May 6, 2009, Defendants removed the action to this

Court on the ground that the complaint presented a federal question.

On July 22, 2009, the Court denied Plaintiffs’ motion for remand, rejecting their

argument that removal was untimely. The Court also dismissed the complaint with leave to

amend on the ground that it did not contain a viable federal claim; the Court deferred

consideration of the state law claims pending the assertion of a viable federal claim.

Plaintiffs filed a first amended complaint on August 20, 2009, again asserting twenty-two

claims for relief, although the amended pleading deleted the claims asserted under the Truth in

Lending Act and other federal statutes. On December 18, 2009, the Court dismissed the first

amended complaint with leave to amend only as to the fraud claims, and without leave to amend

as to the remaining claims. The Court denied Plaintiffs’ renewed request for remand, noting that

although Plaintiffs had deleted their federal claims, the amended complaint nonetheless raised

federal questions.

On March 19, 2010, Plaintiffs filed the operative second amended complaint (“SAC”),

again asserting twenty-two claims for relief. The SAC is not limited to fraud claims as directed

by the Court in its order dated December 18, 2009. 

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Case No. C 09-1995 JF (PVT)

ORDER (1) DENYING PLAINTIFFS’ MOTION FOR REMAND ETC. 

(JFLC2)

II. MOTION FOR REMAND

On May 11, 2010, Plaintiffs filed a renewed motion for remand. They did not clear the

hearing date with chambers or with opposing counsel as required by this Court’s standing order. 

In addition, the motion was filed less than thirty-five days before the hearing date in violation of

Civil Local Rule 7-2(a). The motion repeats arguments previously considered and rejected by the

Court, and thus constitutes an unauthorized motion for reconsideration. For all of these reasons,

the motion for remand will be denied.

III. MOTIONS TO DISMISS

A. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint

if it fails to state a claim upon which relief may be granted. To survive a motion to dismiss for

failure to state a claim, the plaintiff must allege “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint that

raises only “the mere possibility of misconduct” does not establish that the plaintiff is entitled to

relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). The plaintiff must allege facts sufficient

to “nudge his claims . . . across the line from conceivable to plausible.” Id. at 1951 (quoting

Twombly, 550 U.S. at 570).

“In general, the inquiry is limited to the allegations in the complaint, which are accepted

as true and construed in the light most favorable to the plaintiff.” Lazy Y Ranch Ltd. v. Behrens,

546 F.3d 580, 588 (9th Cir. 2008). However, a court need not accept as true “allegations that are

merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v.

Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). In the event that dismissal is

warranted, it is generally without prejudice, unless it is clear “‘that the complaint could not be

saved by any amendment.’” Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005) (quoting

Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002)).

“Although a pro se litigant . . . may be entitled to great leeway when the court construes

his [or her] pleadings, those pleadings nonetheless must meet some minimum threshold in

providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. United

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Case No. C 09-1995 JF (PVT)

ORDER (1) DENYING PLAINTIFFS’ MOTION FOR REMAND ETC. 

(JFLC2)

States Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995). It is not enough for a plaintiff to simply

allege that a wrong has been committed and demand relief. Plaintiffs must give fair notice of the

claims being asserted and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47-48

(1957).

B. Discussion

As noted above, the Court dismissed all of the claims set forth in the first amended

complaint and granted leave to amend only with respect to Plaintiffs’ fraud claims. As to those

claims, the Court stated that:

At a minimum, Plaintiffs must indicate to whom they spoke or corresponded,

when these communications took place, what was said or written, and on what

authority the person(s) acted. Plaintiffs also must indicate with particularity

which Defendant did what. It is insufficient merely to state in conclusory terms

that all of the Defendants committed fraud.

Order of December 18, 2009, at 6-7. The SAC does not come close to meeting these

requirements – rather, it contains the same generalized allegations of wrongdoing that led the

Court to dismiss the first amended complaint. For example, in the SAC Plaintiffs allege that

“Defendants: Luke, WWHL, NCMC, Fidelity concealed, certain material facts from plaintiffs

whom were not aware of them including, but not limited to the following, Exhibit J, H, and O on

loans application and documents these were signed on 10/18/06.” SAC ¶ 122. The SAC goes on

to state a number of “facts” that Defendants concealed, such as “[t]he true interest rate and the

approximate monthly mortgage obligation.” Id. The SAC does not allege the dates of any

particular conversations or correspondence in which fraudulent statements or omissions were

made or the identity of the person or persons involved in such conversations or correspondence,

nor does it allege the contents of such conversation or correspondence with adequate specificity.

The Court has granted Plaintiffs two opportunities to amend their pleading. The Court’s

last order explained clearly the minimum requirements for a viable fraud claim. Moreover, the

Court continued the hearing on the instant motions at Plaintiffs’ request. While the Court is

mindful of their pro se status, the pleadings submitted by Plaintiffs to date, and particularly the

operative SAC, do not give any indication that Plaintiffs might be able to allege a viable claim

even if they were afforded another opportunity to amend. Accordingly, the Court will grant the

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Case No. C 09-1995 JF (PVT)

ORDER (1) DENYING PLAINTIFFS’ MOTION FOR REMAND ETC. 

(JFLC2)

motions to dismiss without leave to amend. 

IV. MOTION TO STRIKE

Defendants move to strike the SAC based upon Plaintiffs’ disregard of the Court’s prior

order limiting amendment to the fraud claims. In light of the Court’s disposition of the motions

to dismiss, the motion to strike will be denied as moot.

V. REMAINING DEFENDANTS

It appears that the instant order disposes of the claims against all defendants that have

been served and that have appeared in this action. It does not appear that the remaining

defendants – Luke Weaver, Worldwidesavers.com Home Loans, New Century Mortgage, and TD

Service Company – have been served, and none of those defendants has appeared. Accordingly,

Plaintiffs will be directed to show cause why the claims against those defendants should not be

dismissed without prejudice for failure to prosecute, and why the entire action should not be

dismissed at this time.

VI. ORDER

(1) Plaintiffs’ motion for remand is DENIED;

(2) Defendants’ motions to dismiss are GRANTED WITHOUT LEAVE TO

AMEND;

(3) Defendants’ motion to strike is DENIED AS MOOT; and

(4) Plaintiffs are directed to SHOW CAUSE, in writing and on or before August 16,

2010, why the claims against the remaining defendants should not be dismissed

without prejudice for failure to prosecute, and why the entire action should not be

dismissed at this time.

Dated: July 29, 2010

__________________________________

JEREMY FOGEL

United States District Judge

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Case No. C 09-1995 JF (PVT)

ORDER (1) DENYING PLAINTIFFS’ MOTION FOR REMAND ETC. 

(JFLC2)

Copies of Order served on:

Eric D. Houser scleere@houser-law.com 

Joshua Howard Abel jabel@houser-law.com, chershey@houser-law.com 

Lee P. Bardellini cmcalice@bscb.com, storres@bscb.com 

Jose R. Carnero

Marta C. Carnero

1558 Minnesota Avenue 1/2

San Jose, CA 95125-4445

Case 3:09-cv-01995-SI Document 75 Filed 07/29/10 Page 6 of 6