McCoy v. Federal Home Loan Mortgage Corporation et al

Filing 7

ORDER granting 6 Motion for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED dismissing 5 First Amended Complaint with leave to file a Second Amended Complaint by July 25, 2011. Clerk must enter dismissal if plaintiff fails to comply. Signed by Judge G Murray Snow on 6/24/11.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Federal Home Loan Mortgage Ass’n et.)
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al.,
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Defendants.
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Thomas J. McCoy ,

No. CV-11-8069-PCT-GMS
ORDER

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Plaintiff has filed an Amended Complaint and Motion for Leave to Proceed in Forma
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Pauperis (Docs. 5, 6). The Court grants the Motion for Leave to Proceed in Forma Pauperis
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and again dismisses the Amended Complaint. It will give Plaintiff one more chance to
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amend his complaint to state a claim.
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Plaintiff’s First Amended Complaint (“FAC”) (Doc. 5), alleges that this Court has
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diversity jurisdiction over his claims because “The Defend (sic) in this case is Federal Home
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Loan Mortgage Ass’n.” and it is based in Fairfax County Virginia, and Plaintiff is seeking
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more than $75,000 in damages.”
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Nevertheless, there are several problems with this argument. An Amended Complaint
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supersedes all previous complaints. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) As a
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result, as a matter of law, allegations that existed in the previous complaint that have not been
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realleged in the amended complaint, are no longer of any force in the lawsuit. “All causes
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of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” Id. Citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Therefore, each of the Defendants and claims from previous complaints that a Plaintiff

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wishes to reallege in his amended complaint, must be repeated in the amended complaint.

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They cannot be incorporated by reference. See LRCiv. 15.1. Plaintiff does not appear to

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have followed this rule. It appears that he believes that the allegations of his original

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complaint remain in force, but they do not.
Federal Rules of Civil Procedure 15(a) authorized Plaintiff to amend his complaint,

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which he did. His amended complaint now governs this action.

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To the extent the FAC alleges, as it does, that the Defendant Federal Home Loan

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Mortgage Ass’n is domiciled in Virginia and his claims exceed $75,000, the complaint

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adequately pleads the existence of diversity jurisdiction against the FHLMA. (Absent from

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the FAC is any allegation that the Plaintiff is an Arizona resident. Nevertheless, because

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Court’s read pro se complaints liberally, the Court is willing to assume for present purposes

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that Plaintiff intends to plead that he is an Arizona resident.) Diversity jurisdiction, however,

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is destroyed to the extent that Plaintiff also intends to name Arizona residents as Defendants

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to his claims. While his original complaint asserts claims against other Arizona residents.

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His FAC does not. Therefore, the Court is willing to assume that Plaintiff has adequately

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pleaded the existence of diversity jurisdiction against the only Defendant mentioned in the

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FAC.

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Nevertheless, to survive dismissal for failure to state a claim pursuant to Federal Rule

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of Civil Procedure 12(b)(6), a complaint must contain more than “labels and conclusions”

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or a “formulaic recitation of the elements of a cause of action[;]” it must contain factual

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allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp.

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v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

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(2009) (citing Twombly, 550 U.S. at 556). The FAC does nothing to identify or state
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Plaintiff’s claims against the FHLMA. A preliminary review of the FAC demonstrates that

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Plaintiff’s sparse allegations are insufficient to put the Defendant on notice of the nature of

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the Plaintiff’s claims against it. See Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir. 1968)

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(affirming dismissal where the complaint did not specify which defendants took which

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actions); Allied Steel & Tractor Prods., Inc. v. First Nat’l Bank of N.Y., 54 F.R.D. 256, 260

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(N.D. Ohio 1971) (discussing that even under “liberalized pleading requirements[,]” “merely

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identifying a party as a defendant without alleging more” violates Federal Rule of Civil

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Procedure 8). Plaintiff’s FAC mentions a claim pursuant to 42 U.S.C. § 1983, but such

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claims can only be brought against persons who are acting under the color of state law, and

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in a state capacity, and who are alleged to have deprived the Plaintiff of his federal rights.

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It is not clear to this court how the FHLMA could be acting under the authority of state law,

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and how it deprived Defendant of his federally-protected rights. Plaintiff’s assertions about

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his title history indicating that the land originally came from a federal patent, do nothing in

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and of themselves to establish a § 1983 claim.. Accordingly, Plaintiff’s FAC is dismissed.

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Should Plaintiff choose to file a second amended complaint, Plaintiff must identify specific

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legal claims against the Defendant or Defendants, further specify which Defendants are liable

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for which claims and must include factual detail supporting each assertion. Therefore,

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IT IS HEREBY ORDERED granting the Motion for Leave to Proceed in forma
pauperis (Doc. 6).
IT IS FURTHER ORDERED dismissing the First Amended Complaint (Doc. 5)
with leave to file a Second Amended Complaint by July 25, 2011.

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IT IS FURTHER ORDERED that if Plaintiff elects not to file a Second Amended

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Complaint by July 25, 2011, the Clerk of the Court is directed to dismiss this action without

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further Order of the Court.

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IT IS FURTHER ORDERED that if Plaintiff elects to file a Second Amended

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Complaint, the Complaint may not be served until and unless the Court screens the Second

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Amended Complaint pursuant to 18 U.S.C. § 1915(e)(2).

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DATED this 24th day of June, 2011.
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