Penate v. Wilshire Credit Corporation

Filing 9

ORDER DISMISSING COMPLAINT with leave to amend to state a proper and comprehensible claim within this courts jurisdiction within thirty (30) days of the date of this order; Signed by Judge Marilyn Hall Patel on 2/1/2008. (Attachments: # 1 CertServ)(awb, COURT-STAFF) (Filed on 2/5/2008)

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Penate v. Wilshire Credit Corporation Doc. 9 Case 3:08-cv-00643-MHP Document 9 Filed 02/05/2008 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff attempts to invoke the admiralty jurisdiction of this court with his complaint which he titles "Petition for Libel Review of an Administrative Judgment" and denominating himself as Sramineus Homo, US Vessel, Libellant". His complaint is strewn with misused, nonexistent or curious words purportedly in English, Latin and bloated legalese.1 The complaint seems to be a repeat of other complaints recently filed in this court, all filed under the mistaken impression that the plaintiff need merely designate himself and the other parties as "vessels" in order to invoke the admiralty jurisdiction of the court and to achieve some other mistaken objectives. What is clear from plaintiff's complaint is that nothing is clear. It is not a short and plain statement of his case. It is incomprehensible and nonsensical. The papers appear to be drawn from some web site or other publicly available boilerplate drafted by someone who is ill-informed and is misinforming others such as this plaintiff.2 Apparently plaintiff has a dispute with the defendant about some extension of credit, loan or debt collection. It is impossible to determine this from his papers. Plaintiff would do well to submit vs. WILSHIRE CREDIT CORPORATION, et al., Defendant(s). / ERIC M. PENATE, Plaintiff(s), UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. 08-0643MHP ORDER DISMISSING COMPLAINT Dockets.Justia.com Case 3:08-cv-00643-MHP Document 9 Filed 02/05/2008 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a short and plain statement of his case as required by Federal Rule of Civil Procedure 8(a) rather than try to use concepts he does not understand or follow the suggestions of some "wannabe" lawyer. Or, better yet, he should retain a real lawyer to represent him. The district court may dismiss a complaint sua sponte if federal subject matter jurisdiction is lacking or if the complaint is frivolous. See 28 U.S.C. 1915(e)(2). A complaint is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989)(found to be superseded on other grounds by reason of adoption of section 1915(e) which makes dismissal for failure to state a claim mandatory), see, e.g., Lopez v. G.A.Smith, 203 F.3d 1122, 1126 (9thCir.2000); Cruz v. Gomez, I/O, 202 F.3d 593, 596 (2dCir.2000). Where a complaint fails to state "any constitutional or statutory right that was violated, nor asserts any basis for federal subject matter jurisdiction", there is no "arguable basis in law" under Neitzke and the court on its own initiative may decline to permit the plaintiff to proceed and dismiss the complaint under section 1915(d). Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). Furthermore, where the complaint alleges facts that are "clearly baseless", "fanciful", or "delusional" it may be dismissed as frivolous. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733 (1992)(also found superseded in that dismissal was within discretion of district court under section 1915(d)) and now, under section 1915(e)(2) dismissal is mandatory, see Cruz v. Gomez, 202 F.3d at 596. If the pro se plaintiff can cure the factual allegations in order to state a claim, the court may give him or her leave to do so. However, if repleading cannot cure the deficiencies the court may dismiss without leave to amend and even dismiss with prejudice. See Cato v. United States, 70 F.3d at 1106. It is possible that plaintiff could state some plausible claim over which this court or the state court would have jurisdiction. It may be that plaintiff has some legitimate contract or debt collection claims, for example, but it is impossible to tell from plaintiff's current complaint. Certainly, there is nothing that appears in the papers that falls within the court's admiralty jurisdiction. Plaintiff cannot make himself and the defendant vessels just by calling them vessels. Case 3:08-cv-00643-MHP Document 9 Filed 02/05/2008 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Therefore, the complaint is DISMISSED with leave to amend to state a proper and comprehensible claim within this court's jurisdiction. If plaintiff intends to amend to comply with this order, he must file his amended complaint within thirty (30) days of the date of this order. IT IS SO ORDERED. Date: February 1, 2008 MARILYN HALL PATEL Judge, United States District Court Northern District of California Case 3:08-cv-00643-MHP Document 9 Filed 02/05/2008 Page 4 of 4 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ENDNOTES 1. For example, in the caption plaintiff refers to himself as "Sramineus Homo". There is no such word as "sramineus" in Latin; there is a word "stramineus" which means "straw" and would render plaintiff a "straw man". That term, of course, refers to an idea or argument that has no substance, but is set up so that it can be easily knocked down. So, either plaintiff misunderstands the meaning of the term or perhaps he has a sense of humor. 2. Indeed, this court has located a website that seems to be spawning the type of complaint filed in this action. The court has reviewed the website and instructs plaintiff that the contents of that site are a fraud being perpetrated on the public. It is full of false information. The use of the heading "United States District Court" is a misrepresentation. It is not issued or approved by any United State District Court. The contents of the document on the website are full of false statements. People use it at their peril and may, unfortunately, jeopardize real and legitimate claims or disputes they have. They can only do themselves harm by following the ill-advised, wacky recommendations on this website. Case 3:08-cv-00643-MHP Document 9-2 Filed 02/05/2008 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ERIC M. PENATE, Plaintiff, v. WILSHIRE CREDIT CORPORATION et al, Defendant. / Case Number: CV08-00643 MHP CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 5, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Eric Miguel Penate 26021 Gettysburg Avenue Hayward, CA Exempt Dated: February 5, 2008 Richard W. Wieking, Clerk By: Anthony Bowser, Deputy Clerk

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