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Emelito Alberto v. Bank of America

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 29, 2012

EMELITO ALBERTO , PLAINTIFF,
v.
BANK OF AMERICA, NATIONAL ASSOC. ET AL., DEFENDANT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff, proceeding pro se in this action, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Dkt. 2. This matter was referred to the undersigned by Local Rule 72-302(21), pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.

That determination, however, does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. A claim is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984); Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). A complaint, or any portion thereof, lacks such a basis if it appears beyond doubt there is no set of supporting facts entitling plaintiff to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true its allegations, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe it in the light most favorable to plaintiff, and resolve all doubts in plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

On the face of this complaint, the undersigned is unable to determine a jurisdictional basis for this action. A federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. See Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 114 S. Ct. 1673, 1675 (1994). As such, a federal court is presumed to be without jurisdiction unless it is affirmatively stated otherwise. See Fifty Associates v. Prudential Ins. Co. Of America, 446 F.2d 1187, 1190 (9th Cir. 1970) citing Grace v. American Central Ins. Co., 109 U.S. 278, 284 (1883). Lack of subject matter jurisdiction may be raised at any time by either party or by the court. See Attorneys Trust v. Videotape Computer Products,Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer "federal question" and "diversity" jurisdiction, respectively. Plaintiff here has alleged that jurisdiction is predicated upon diversity of citizenship pursuant to 28 U.S.C. § 1332. This statue requires that each plaintiff be diverse from each defendant,*fn1 and the amount in controversy must exceed $75,000. For diversity purposes, a corporation is deemed to be a citizen of every state by which it has been incorporated and of the state where it has its principal place of business. 28 U.S.C. § 1332(c). Plaintiff must allege, in the pleadings, the facts essential to show proper and complete diversity jurisdiction in order to maintain standing in federal district court. See Fifty Associates, 446 F.2d at 1190 citing McNutt v. General Motors Acceptance Corp. Of Indiana, 298 U.S. 178, 189 (1935).

Measured against these requirements, plaintiff's complaint is insufficient to confer jurisdiction on this court, in this action. Plaintiff, a citizen of the state of California, names three defendants - Bank of America ("BOA"), JP Morgan Chase Bank ("JP Morgan") and Title Trust Deed Service Co. ("TTDS") - in this lawsuit. Dkt. 1 at 1-2. As to BOA and JP Morgan, plaintiff states only that they are "organized and existing under the laws of [the] United States....its members and owners are citizens of another state." Id. This is insufficient to properly allege diversity jurisdiction with respect to these two defendants. First, plaintiff fails to allege a specific state of which defendants are a citizen. Without this information, the undersigned cannot determine whether defendants are, in fact, diverse to plaintiff.

Moreover, given that all three defendants are corporations, plaintiff must allege both the state(s) of each defendant's incorporation and where it has its principal place of business. See Harris v. Rand, 682 F.3d 846, 850 (9th Cir. 2012) (emphasis added), 28 U.S.C. § 1332 (c)(1) (a corporation shall be deemed to be a citizen of every state by which it has been incorporated and of the state where it has its principal place of business), Fifty Associates, 446 F.2d at 1190 (facts must be alleged from which it may be determined of which state, or states, the corporation is deemed to be a citizen). As to defendant TTDS, plaintiff alleges it is organized and exists under the laws of New York (Dkt. 1 at 2), but has failed to allege where it has its principal place of business. There are no allegations concerning BOA's or JP Morgan's principal place of business and, as noted above, no specific state is alleged as a state of incorporation. Id. at 1-2. Because plaintiff has failed to allege facts showing the citizenship of each defendant, the undersigned cannot determine of which state or states defendants are citizens.

Plaintiff has therefore failed to show the presence of complete diversity between plaintiff and defendants and has thus failed to allege the jurisdictional basis for bringing this case in federal court. Accordingly, plaintiff will be permitted the opportunity to amend his complaint to show why jurisdiction is proper in this court, if he can do so in good faith.

Plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 15-220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's request for leave to proceed in forma pauperis (Dkt. 2) is GRANTED;

2. Plaintiff's complaint (Dkt. 1) is DISMISSED; and

3. Plaintiff is granted twenty-eight days from the date of service of this order to file an amended complaint that complies with the requirements of Federal law, the Federal Rules of Civil Procedure, and the Local Rules of Practice. Failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed.


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