Williams, et al v. Indymac Bank FSB, et al
Filing
4
ORDER denying 2 , 3 Motion to Proceed IFP signed by Magistrate Judge Dale A. Drozd on 12/12/11: The complaint filed August 8, 2011 1 is dismissed with leave to amend. Within twenty-eight days from the date of this order, an amended complaint be filed that cures the defects noted in this order. (Kaminski, H)
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
WARREN WILLIAMS, et al.,
10
11
12
13
14
15
Plaintiffs,
No. CIV S-11-2090 MCE DAD PS
v.
INDYMAC BANK, FSB, et al.,
ORDER
Defendants.
/
This matter was referred to the undersigned in accordance with Local Rule
16
302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiffs Warren Williams and Bernice Williams have
17
each requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
18
Plaintiffs however have submitted incomplete, and partially illegible, in forma
19
pauperis applications. Specifically, plaintiff Warren Williams has indicated in his in forma
20
pauperis application that over the past twelve months he received money from a pension, annuity
21
or life insurance, and received money from disability or workers compensation. (Warren
22
Williams In Forma Pauperis Application (Doc. No. 2) at 1.) However, Mr. Williams did not
23
describe the source of the money or state the amount received and what he expected to continue
24
to receive, all of which information is requested by the form. Moreover, many of Mr. Williams’
25
written responses on his in forma pauperis application are illegible. The in forma pauperis
26
application submitted on behalf of Bernice Williams suffers from the same defects. (See Bernice
1
1
Williams In Forma Pauperis Application (Doc. No. 3) at 1-2.) Plaintiffs’ applications to proceed
2
in forma pauperis will therefore be denied without prejudice to their filing of properly completed
3
and legible in forma pauperis applications.
4
Moreover, under 28 U.S.C. § 1915(e)(2), the court is required to dismiss an in
5
forma pauperis case at any time if the plaintiff’s allegations of poverty is untrue or if the action is
6
frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
7
relief against an immune defendant. To state a claim on which relief may be granted, the
8
plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
9
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is frivolous when it lacks an arguable
10
basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Balistreri v.
11
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
12
In considering whether a complaint states a cognizable claim, the court accepts as
13
true the material allegations in the complaint and construes the allegations in the light most
14
favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co.
15
v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245
16
(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by
17
lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as
18
true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
19
Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
20
The minimum requirements for a civil complaint in federal court are as follows:
21
A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a
demand for judgment for the relief the pleader seeks.
22
23
24
25
26
Fed. R. Civ. P. 8(a).
Here, plaintiffs’ complaint is deficient in several respects. First, the court notes
that plaintiffs have not listed a phone number in the upper left hand corner of the complaint and
2
1
neither plaintiff has signed the complaint that they filed with this court. Each plaintiff’s name,
2
address, and telephone number must be included in the upper left-hand corner and each plaintiff
3
must sign each document filed on behalf of all plaintiffs. Local Rule 131(a) and (b); Fed. R. Civ.
4
P. 11.
5
Second, while plaintiffs’ complaint makes vague, conclusory and passing
6
references to 15 U.S.C. § 6101, the Uniform Commercial Code, and the Fair Debt Collection
7
Practices Act, 15 U.S.C. § 1692, et seq., plaintiffs’ amended complaint is devoid of any cause of
8
action based on federal law.
9
Jurisdiction is a threshold inquiry that must precede the adjudication of any case
10
before the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization,
11
858 F.2d 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may
12
adjudicate only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511
13
U.S. 375, 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992).1 “Federal courts are
14
presumed to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’”
15
Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch.
16
Dist., 475 U.S. 534, 546 (1986)).
17
Lack of subject matter jurisdiction may be raised by the court at any time during
18
the proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th
19
Cir. 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it]
20
has subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It
21
is the obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux
22
v. Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court
23
cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380.
24
25
26
1
Congress has conferred jurisdiction upon the federal district courts as limited by the
United States Constitution. U.S. Const. Art. III, § 2; 28 U.S.C. § 132; see also Ankenbrandt v.
Richards, 504 U.S. 689, 697-99 (1992).
3
1
The burden of establishing jurisdiction rests upon plaintiff as the party asserting
2
jurisdiction. Kokkonen, 511 U.S. at 377; see also Hagans v. Lavine, 415 U.S. 528, 543 (1974)
3
(acknowledging that a claim may be dismissed for lack of jurisdiction if it is “so insubstantial,
4
implausible, . . . or otherwise completely devoid of merit as not to involve a federal controversy
5
within the jurisdiction of the District Court”); Bell v. Hood, 327 U.S. 678, 682-83 (1946)
6
(recognizing that a claim is subject to dismissal for want of jurisdiction where it is “wholly
7
insubstantial and frivolous” and so patently without merit as to justify dismissal for lack of
8
jurisdiction ); Franklin v. Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984) (holding that even
9
“[a] paid complaint that is ‘obviously frivolous’ does not confer federal subject matter
10
11
jurisdiction . . . and may be dismissed sua sponte before service of process.”).
The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which
12
confer “federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also
13
be conferred by federal statutes regulating specific subject matter. District courts have “original
14
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
15
States.” 28 U.S.C. § 1331. “Most federal-question jurisdiction cases are those in which federal
16
law creates a cause of action. A case may also arise under federal law where ‘it appears that
17
some substantial, disputed question of federal law is a necessary element of one of the well-
18
pleaded state claims.’” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) (quoting Franchise
19
Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13 (1983)). The
20
“well-pleaded complaint rule” provides that federal jurisdiction exists only when a federal
21
question is presented on the face of the plaintiff’s properly pleaded complaint. California v.
22
United States, 215 F.3d 1005, 1014 (9th Cir. 2000).
23
“‘Arising under’ federal jurisdiction only arises . . . when the federal law does
24
more than just shape a court’s interpretation of state law; the federal law must be at issue.” Int’l
25
Union of Operating Eng’rs v. County of Plumas, 559 F.3d 1041, 1045 (9th Cir. 2009). The mere
26
presence of a federal issue does not automatically confer federal-question jurisdiction, and
4
1
passing references to federal statutes do not create a substantial federal question. Lippitt v.
2
Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1040-41 (9th Cir. 2003); Rains v. Criterion
3
Sys., Inc., 80 F.3d 339, 344 (9th Cir. 1996). “When a claim can be supported by alternative and
4
independent theories – one of which is a state law theory and one of which is a federal law theory
5
– federal question jurisdiction does not attach because federal law is not a necessary element of
6
the claim.” Rains, 80 F.3d at 346; see also Lippitt, 340 F.3d at 1043.
7
Third, while several causes of action are listed in the caption of plaintiffs’
8
complaint, there are no causes of action alleged in the body of the complaint. Moreover, the
9
allegations of the complaint do not identify the actions of any individual defendant named in the
10
caption of the complaint. Instead, the non-specific term “defendant” is used by plaintiffs
11
throughout the complaint in connection with their factual allegations.
12
Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a
13
complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that
14
state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.
15
Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels
16
and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor
17
does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
18
enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, ---, 129 S. Ct. 1937, 1949 (2009) (quoting
19
Twombly, 550 U.S. at 555, 557. A plaintiff must allege with at least some degree of particularity
20
overt acts which the defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at
21
649.
22
Finally, a claim of fraud is listed in the caption of plaintiffs’ complaint. When a
23
plaintiff raises claims of fraud, “the circumstances constituting fraud . . . shall be stated with
24
particularity.” Fed. R. Civ. P. 9(b). “Rule 9(b) serves not only to give notice to defendants of the
25
specific fraudulent conduct against which they must defend, but also ‘to deter the filing of
26
complaints as a pretext for the discovery of unknown wrongs, to protect [defendants] from the
5
1
harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally
2
imposing upon the court, the parties and society enormous social and economic costs absent
3
some factual basis.’” Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (quoting In
4
re Stac Elec. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir. 1996)). Pursuant to Rule 9(b), a plaintiff
5
alleging fraud at a minimum must plead evidentiary facts such as the time, place, persons,
6
statements and explanations of why allegedly misleading statements are misleading. In re
7
GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547 n.7 (9th Cir. 1994); see also Vess v. Ciba-Geigy
8
Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003); Fecht v. Price Co., 70 F.3d 1078, 1082 (9th
9
Cir. 1995).2 Here, plaintiffs have failed to plead the minimum evidentiary facts required under
10
Rule 9(b).
11
12
Accordingly, for all of the reasons cited above, plaintiffs’ complaint will be
dismissed for failure to state a claim.
13
The undersigned has carefully considered whether plaintiffs may amend their
14
complaint to state a claim upon which relief can be granted. “Valid reasons for denying leave to
15
amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg.
16
Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake
17
Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that
18
while leave to amend shall be freely given, the court does not have to allow futile amendments).
19
However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff may be
20
dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts in
21
support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,
22
1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972). See also Weilburg v.
23
Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
24
2
25
26
Likewise, “[u]nder California law, the ‘indispensable elements of a fraud claim include
a false representation, knowledge of its falsity, intent to defraud, justifiable reliance, and
damages.’” Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003) (quoting
Moore v. Brewster, 96 F.3d 1240, 1245 (9th Cir. 1996)).
6
1
amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be
2
cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
3
1988)).
4
Here, the court cannot say that it appears beyond doubt that leave to amend would
5
be futile. Plaintiffs’ complaint will therefore be dismissed with leave granted to file an amended
6
complaint. Plaintiffs are cautioned, however, that if they elect to file an amended complaint “the
7
tenet that a court must accept as true all of the allegations contained in a complaint is
8
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
9
supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. “While
10
legal conclusions can provide the complaint’s framework, they must be supported by factual
11
allegations.” Id. at 1950. Those facts must be sufficient to push the claims “across the line from
12
conceivable to plausible[.]” Id. at 1951 (quoting Twombly, 550 U.S. at 557).
13
Plaintiffs are also reminded that the court cannot refer to a prior pleading in order
14
to make an amended complaint complete. Local Rule 220 requires that any amended complaint
15
be complete in itself without reference to prior pleadings. The amended complaint will
16
supersede the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in
17
an amended complaint, just as if it were the initial complaint filed in the case, each defendant
18
must be listed in the caption and identified in the body of the complaint, and each claim and the
19
involvement of each defendant must be sufficiently alleged. Plaintiffs’ amended complaint must
20
include concise but complete factual allegations describing the conduct and events which
21
underlie their claims.
22
Accordingly, IT IS HEREBY ORDERED that:
23
1. Plaintiff Warren Williams’ August 8, 2011, application to proceed in forma
24
25
26
pauperis (Doc. No. 2) is denied without prejudice.
2. Plaintiff Bernice Williams’ August 8, 2011, application to proceed in forma
pauperis (Doc. No. 3) is denied without prejudice.
7
1
2
3. The complaint filed August 8, 2011 (Doc. No. 1) is dismissed with leave to
amend.
3
4. Within twenty-eight days from the date of this order, an amended complaint
4
be filed that cures the defects noted in this order and complies with the Federal Rules of Civil
5
Procedure and the Local Rules of Practice. The amended complaint must bear the case number
6
assigned to this action and must be titled “Amended Complaint.”
7
5. Failure to comply with this order in a timely manner may result in a
8
recommendation that this action be dismissed.
9
DATED: December 12, 2011.
10
11
12
13
14
DAD:6
Ddad1\orders.pro se\williams2090.ifp.ord
15
16
17
18
19
20
21
22
23
24
25
26
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?