United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
court previously granted plaintiff's request for leave to
proceed in forma pauperis, but dismissed
plaintiff's original complaint with leave to amend
pursuant to 28 U.S.C. § 1915(e)(2). ECF No. 12.
Plaintiff's complaint alleged that he opened a Visa
Direct Deposit account with defendant Netspend Corporation
(“Netspend”). ECF No. 1 at 1. He allegedly used
the account to deposit his monthly social security checks.
Id. at 1-2. However, he claims that money he
deposited into the account went missing, and that Netspend
failed to provide an explanation as to what happened to
plaintiff's money. Id. at 2, 6-8.
dismissing, the court noted that it was “unclear from
plaintiff's complaint whether this court has subject
matter jurisdiction over plaintiff's claim(s), since the
complaint does not allege any specific claims for
relief.” ECF No. 12. Accordingly, the court dismissed
plaintiff's complaint, but provided plaintiff an
opportunity to amend to “allege a basis for this
court's jurisdiction, as well as a cognizable legal
theory and sufficient facts in support of that cognizable
legal theory.” Id. The order provided that
“[s]hould plaintiff choose to file an amended
complaint, the amended complaint shall clearly set forth the
allegations against defendant and shall specify a basis for
this court's subject matter jurisdiction.”
subsequently filed a first amended complaint. ECF No. 14. The
amended complaint alleges that a few years prior to
initiating this action, plaintiff opened a Visa Direct
Deposit account with Netspend. Id. at 1. After
opening the account plaintiff was arrested and incarcerated.
Id. While imprisoned, plaintiff deposited four
social security checks totaling more than $3, 000. He claims,
however, that between May 2013 and March 2014 there were $2,
281 in fraudulent charges made to the account. Id.
Plaintiff made several attempts to contact Netspend, but it
has refused to explain what happened to plaintiff's
money. Id. at 2. Plaintiff now requests that
Netspend be ordered to honor its “contract of being
federaly [sic] insured against frudulant [sic] charges . . .
.” Id. at 3. He claims that this court has
subject matter jurisdiction over the case because the
“account was federaly [sic] insured against identy
[sic] theft.” Id.
previously explained to plaintiff, although pro se pleadings
are liberally construed, see Haines v. Kerner, 404
U.S. 519, 520-21 (1972), a complaint, or portion thereof,
should be dismissed for failure to state a claim if it fails
to set forth “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing
Conley v. Gibson, 355 U.S. 41 (1957)); see
also Fed. R. Civ. P. 12(b)(6). “[A]
plaintiff's obligation to provide the ‘grounds'
of his ‘entitlement to relief' requires more than
labels and conclusions, and a formulaic recitation of a cause
of action's elements will not do. Factual allegations
must be enough to raise a right to relief above the
speculative level on the assumption that all of the
complaint's allegations are true.” Id.
(citations omitted). Dismissal is appropriate based either on
the lack of cognizable legal theories or the lack of pleading
sufficient facts to support cognizable legal theories.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990).
this standard, the court must accept as true the allegations
of the complaint in question, Hospital Bldg. Co. v. Rex
Hosp. Trustees, 425 U.S. 738, 740 (1976) and construe
the pleading in the light most favorable to the plaintiff,
and resolve all doubts in the plaintiff's favor,
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A
pro se plaintiff must satisfy the pleading requirements of
Rule 8(a) of the Federal Rules of Civil Procedure. Rule
8(a)(2) “requires a complaint to include a short and
plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair
notice of what the claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 554, 562-563 (2007) (citing Conley v. Gibson,
355 U.S. 41 (1957)).
a federal court is a court of limited jurisdiction, and may
adjudicate only those cases authorized by the Constitution
and by Congress. Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 377 (1994). The basic federal jurisdiction
statutes, 28 U.S.C. §§ 1331 & 1332, confer
“federal question” and “diversity”
jurisdiction, respectively. Federal question jurisdiction
requires that the complaint (1) arise under a federal law or
the U.S. Constitution, (2) allege a “case or
controversy” within the meaning of Article III, §
2 of the U.S. Constitution, or (3) be authorized by a federal
statute that both regulates a specific subject matter and
confers federal jurisdiction. Baker v. Carr, 369
U.S. 186, 198 (1962). To invoke the court's diversity
jurisdiction, a plaintiff must specifically allege the
diverse citizenship of all parties, and that the matter in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a);
Bautista v. Pan American World Airlines, Inc., 828
F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside
the jurisdiction of the federal courts unless demonstrated
otherwise. Kokkonen, 511 U.S. at 376-78. Lack of
subject matter jurisdiction may be raised at any time by
either party or by the court. Attorneys Trust v.
Videotape Computer Products, Inc., 93 F.3d 593, 594-95
(9th Cir. 1996).
plaintiff's original complaint, his amended complaint
fails to adequately allege a basis for this court's
jurisdiction. Plaintiff does not establish that this case
involves a federal question, as he fails to identify any
specific federal statute or law that defendant allegedly
violated. Furthermore, the allegations in the complaint
indicate that plaintiff's damages total, at most, are
approximately $3, 000; far less than the $75, 000 required
for diversity jurisdiction. See 28 U.S.C. §
1332(a). Accordingly, the court lacks jurisdiction over this
the jurisdictional deficiency, as well as plaintiff's
failure to remedy the deficiency in his amended complaint,
the court finds that further amendment would be futile.
Accordingly, plaintiffs complaint should be dismissed without
leave to amend. Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987) (While the court ordinarily would permit a
pro se plaintiff to amend, leave to amend should not be
granted where it appears amendment would be futile).
it is hereby ORDERED that the Clerk of the Court shall
randomly assign a United States District Judge to this
it is RECOMMENDED that plaintiffs first amended complaint be
dismissed without leave to amend and the Clerk be directed to
close this case.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Failure to
file objections within the specified time may waive the right
to appeal the District Court's order. Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez
v. Ylst, 951 F.2d 1153 (9th Cir. 1991).