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SALEMO v. BANK OF AMERICA

United States District Court, N.D. California


February 10, 2004.

GEORGE SALEMO, President, Childers & Jenkins, Inc., Plaintiff(s),
v.
BANK OF AMERICA, NA, Defendant(s)

The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER OF DISMISSAL (Doc # 2)
Plaintiff, a prisoner at the Federal Medical Center in Fort Worth, Texas, and frequent litigant in federal court, has filed a pro se complaint for damages against Bank of America, NA ("B of A"). Plaintiff alleges that from September 2002 to November 2002, an unauthorized person cashed unauthorized checks totaling $6,000 to $13,000 against the B of A California account of Childers & Jenkins, Inc., a presently "non-active" corporation of which he is president, chief executive officer and principal stockholder. Plaintiff seeks $15,000 in compensatory damages and $250,00 in punitive damages for B of A's "negligent" acts.

Plaintiff seeks to proceed in forma pauperis under 28 U.S.C. § 1915.

  DISCUSSION

  A federal court must dismiss an action brought under 28 U.S.C. § 1915 at any time if it determines that the action "is frivolous or malicious," "fails to state a claim on 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). Page 2

  In order to proceed with this action for damages against B of A, plaintiff must establish that the matter in controversy: (1) exceeds the sum or value of $75,000, exclusive of interest and costs; and (2) is between citizens of different states. 28 U.S.C. § 1332(a). He does not.

  Plaintiffs complaint makes clear that the actual damages at issue, exclusive of interest and costs, amount to a maximum of $13,000. This is substantially less than the requisite $75,000. And although he seeks $250,000 in punitive damages, there is no indication whatsoever of conduct by B of A that would support punitive damages, let alone an award equal to nearly 20 times actual damages. The amount in controversy requirement for subject matter jurisdiction in this case is not satisfied. See H & D Tire and Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 329 (5th Cir 2000) (not including punitive damages in amount in controversy where there is no indication that conduct at issue would support punitive damages).*fn1

  CONCLUSION

  For the foregoing reasons, plaintiffs request to proceed in forma pauperis (doc # 2) is DENIED and the complaint is DISMISSED without prejudice to filing in state court.

  The clerk shall close the file and terminate all pending motions as moot. No fee is due.

  SO ORDERED.


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