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Theus v. Selene Fin. LLC

United States District Court, D. Columbia.

April 14, 2015

RHONDA D. THEUS, Plaintiff,
v.
SELENE FINANCE LLC, et al., Defendants

RHONDA D. THEUS, Plaintiff, Pro se, Macomb, MI.

For SELENE FINANCE LLC, Defendant: Stephen H. Sherman, LEAD ATTORNEY, MCGINNIS WUTSCHER LLP, Washington, DC.

Page 23

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge.

Plaintiff Rhonda D. Theus filed this pro se lawsuit against defendants Selene Finance LLC (" Selene" )[1] and Clearmont LLC (" Clearmont" ), bringing claims related to a foreclosure on real property located in Macomb County, Michigan. Selene has filed a motion to dismiss the complaint on several grounds: lack of federal subject-matter jurisdiction; improper service of process; improper venue; and failure to state a claim.[2] Selene's Mot. to Dismiss Compl. [Dkt. # 7] (" Mot." ); Statement of P. & A. in Supp. of Mot. [Dkt. # 7-1] (" Mem.c). The Court finds that it lacks subject-matter jurisdiction over this action and that plaintiff has failed to state a claim upon which relief can be granted, and so the case will be dismissed.

BACKGROUND

Plaintiff is a Michigan resident who filed the complaint in this case on July 24, 2014. Compl. [Dkt. # 1]. The citizenship of defendant Selene is not readily apparent, and defendant Clearmont is a citizen of Michigan. See, e.g., Compl. at 10 (" warranty deed" attached to complaint stating that Clearmont is " a Michigan Limited Liability Company" ). Although the complaint is

Page 24

difficult to decipher, plaintiff's allegations appear to concern a foreclosure on real property located in Macomb County, Michigan. See id. at 2. The complaint does not contain any express allegations against Clearmont or Selene, but plaintiff seems to contend that one or both defendants cannot establish they are " the 'holder[s] in due course' of the mortgage note" because they cannot produce original " wet ink signature" copies of the mortgage note, deed of trust, or " other similar 'Security Instrument[s].'" Id. at 4. Plaintiff also alleges that she is entitled to receive $281,000 in damages from one or both defendants because of fraudulent acts she contends were committed with respect to the foreclosure. Id. at 5-6.

On September 16, 2014, the Court issued an order stating: " Upon review of the complaint, it appears that plaintiff has failed to allege any facts that would indicate that this Court has subject matter jurisdiction over this case." Order (Sept. 16, 2014) [Dkt. # 5] at 1. The Court ordered plaintiff to show cause by October 7, 2014, why the Court had jurisdiction. Id. The Court cautioned plaintiff to keep in mind " the legal requirement of complete diversity of citizenship of the parties and the $75,000 amount in controversy requirement" under 28 U.S.C. § 1332. Id. In addition, noting that plaintiff was proceeding pro se, the Court advised plaintiff that failing to respond to the potentially dispositive question posed in the order could result in the dismissal of plaintiff's case. Id. at 1-2, citing Fox v. Strickland, 837 F.2d 507, 509, 267 U.S.App.D.C. 84 (D.C. Cir. 1988).

Defendant Selene filed the pending motion to dismiss on September 25, 2014. Mot. On September 29, 2014, the Court issued a Fox Order that informed the pro se plaintiff that failing to respond to the motion to dismiss could result in the dismissal of her case. Fox Order [Dkt. # 8] at 1, citing Fox, 837 F.2d 507, 267 U.S.App.D.C. 84. The Court ordered plaintiff to respond to the motion to dismiss on or before October 24, 2014. Id. at 2. The Court also extended the deadline for plaintiff to respond to the September 16, 2014 order to show cause until October 24, 2014, stating that plaintiff could file one pleading in response to both that order and Selene's motion to dismiss. Id.

On October 21, 2014, plaintiff filed a series of " affidavits in support of plaintiff's claims" that purportedly responded to the Court's order to show cause and the motion to dismiss. Affs. in Supp. of Pl.'s Claims [Dkt. # 9] (" Pl.'s Affs." ).[3] Selene filed a reply on October 31, 2014. Selene's Reply Mem. in Supp. of Mot. [Dkt. # 10].

STANDARD OF REVIEW

In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must " treat the complaint's factual allegations as true . . . and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.App.D.C. 268 (D.C. Cir. 2000) (citation omitted), quoting Schuler v. United States, 617 F.2d 605, 608, 199 U.S.App.D.C. 23 (D.C. Cir. 1979); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139, 395 U.S.App.D.C. 316 (D.C. Cir. 2011). Nevertheless, " 'the court need not accept factual ...


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