Pigg v. Gamble et al

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Amended Complaint due by 12/5/2012. Signed by Judge Thelton E. Henderson on 11/07/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 11/8/2012)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 8 No. C-12-5009 TEH (PR) RANDY PIGG, 9 Plaintiff, 10 v. 11 United States District Court For the Northern District of California 12 ORDER OF DISMISSAL WITH LEAVE TO AMEND GERTRUDE GAMBLE, JOHN M. PARSONS, JOHNSTON H. CHANDLER and ERNEST TERRELL, JR., 13 Defendants. 14 / 15 Plaintiff Randy Pigg, a state inmate incarcerated at the 16 17 18 19 20 21 California Training Facility in Soledad, filed a pro se action against Gertrude Gamble, John M. Parsons, Johnston H. Chandler and Ernest Terrell, Jr.1 pauperis has been granted in a separate order. I In his complaint, Plaintiff alleges that Defendants 23 25 26 27 28 This action is now before the Court for review under 28 U.S.C. § 1915A. 22 24 Plaintiff’s application to proceed in forma defrauded him from his share of the Gertrude Gamble estate, which was comprised of real property located in the state of Louisiana. 1 Although not named in the caption of his complaint, Plaintiff alleges that, in addition to the named Defendants, he holds “harmful” the law firm of James Campbell, Cook, Yancey, King and Galloway and Palmer Petroleum Inc., Exco Resources, Inc. and Petrohawk Operating Company. 1 Plaintiff alleges that Ernest Terrell Jr. “purports to have sold his 2 interest in the Gamble property to give the impression that he sold 3 his interest in the DeSoto Parish Property with all of the fellow 4 heirs. 5 deceive the fellow heirs. 6 property in question, plus mineral interest.” 7 allegations, Plaintiff asserts the claims of fraud and “disputed 8 title.” 9 legal title to the Gertrude Gamble estate; a preliminary injunction This is not the case. In actuality, it was to primarily A ploy to have total control of the Based upon these Plaintiff’s requests for relief include: restoration of his 10 closing all lease roads entering and exiting the Gamble estate 11 property; dissolution of all oil and gas lease contracts; an 12 accounting concerning all financial matters of the Gertrude Gamble 13 estate property; an order directing the State of Louisiana 14 Commissioner of Conservation to release all records concerning the 15 Parsons Well Unit and other forms of injunctive relief. 16 II 17 A federal court must engage in a preliminary screening of 18 any case in which a prisoner seeks redress from a governmental 19 entity or officer or employee of a governmental entity. 20 § 1915A(a). 21 forma pauperis, a court must engage in a preliminary screening of 22 the complaint when it alleges claims against private individuals or 23 entities. 24 must identify any cognizable claims, and dismiss any claims which 25 are frivolous, malicious, fail to state a claim upon which relief 26 may be granted or seek monetary relief from a defendant who is Furthermore, when a plaintiff requests to proceed in 28 U.S.C. § 1915(e)(2). 27 28 28 U.S.C. 2 Under both statutes, the court 1 immune from such relief. 2 Pro se pleadings must be liberally construed. 3 F.3d 338, 342 (9th Cir. 2010). 28 U.S.C. §§ 1915A(b) and 1915(e)(2). 4 5 Hebbe v. Pliler, 627 III "Federal courts are courts of limited jurisdiction. 6 possess only that power authorized by Constitution and statute, 7 . . . which is not to be expanded by judicial decree." 8 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 9 They is presumed to lack jurisdiction unless the contrary appears Kokkonen v. The court 10 affirmatively from the record. 11 U.S. 332, 342 n.3 (2006). 12 jurisdiction sua sponte before proceeding to the merits of a case. 13 S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th 14 Cir. 1990). 15 subject-matter jurisdiction, the court must dismiss the action." 16 Fed. R. Civ. P. 12(h)(3). 17 DaimlerChrysler Corp. v. Cuno, 547 Federal courts have a duty to examine "If the court determines at any time that it lacks The complaint must demonstrate that the district court has 18 either federal question or diversity jurisdiction. 19 jurisdiction statute confers jurisdiction in cases where the parties 20 are citizens of different states and where the amount in controversy 21 exceeds $75,000. 22 strictly construed, and any doubts are resolved against finding 23 jurisdiction. 24 1092 (9th Cir. 1983). 25 jurisdictional fact in diversity actions, the burden is on the 26 plaintiff -- the party invoking federal jurisdiction -- to plead and 28 U.S.C. § 1332. The diversity statute is Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, Because the citizenship of the parties is a 27 28 The diversity 3 1 prove such facts. 2 828 F.2d 546, 552 (9th Cir. 1987). 3 Bautista v. Pan American World Airlines, Inc., On the cover sheet of his complaint, Plaintiff has checked 4 the box indicating that the basis of jurisdiction is diversity. 5 has also checked the boxes indicating that he is a citizen of this 6 state and that Defendants are incorporated and have their principal 7 place of business in another state. 8 demands $10,000,000 in damages. 9 appears that Plaintiff may meet the requirements for diversity 10 He He also indicates that he Thus, from the cover sheet, it jurisdiction. 11 However, as indicated above, it is not clear from 12 Plaintiff’s complaint which individuals or businesses he is actually 13 suing. 14 Plaintiff must specify the state of citizenship for each individual 15 and business he is suing. 16 citizen of California, diversity jurisdiction exists only if all 17 named Defendants are citizens of states other than California. 18 Therefore, this complaint is dismissed for lack of diversity 19 jurisdiction. 20 and, thus, there is no federal question jurisdiction here. 21 U.S.C. § 1332. 22 allege that there is complete diversity between the parties. 23 In order to sufficiently allege diversity jurisdiction, Because Plaintiff alleges that he is a Furthermore, Plaintiff does not allege federal claims Plaintiff is given leave to amend to adequately Moreover, Plaintiff’s complaint must be dismissed for 24 another reason. 25 not adequately alleged. 26 conduct that gives rise to each claim. Plaintiff’s claims of fraud and disputed title are Plaintiff must allege each Defendant’s 27 28 See 28 4 Furthermore, claims of fraud 1 must be stated with particularity. 2 (party alleging fraud “must state with particularity the 3 circumstances constituting fraud or mistake”). 4 See Fed. R. Civ. Pro. 9(b) In Louisiana, the elements of a claim of fraud are “a 5 misrepresentation of material fact made with the intent to deceive 6 when there was reasonable or justifiable reliance by the plaintiff 7 and resulting injury.” 8 3d 398, 404-05 (La. App. 5 Cir. 2012).2 9 requirements apply to state as well as federal claims of fraud. Chateau Homes by RJM, Inc. v. Aucoin, 97 So. Rule 9(b)’s particularity 10 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003). 11 To adequately plead fraud, a plaintiff must allege the circumstances 12 of the fraudulent conduct which includes the time, place and nature 13 of the alleged fraudulent activities or statements. 14 LLP, 476 F.3d 756, 764 (9th Cir. 2007). 15 sued in connection with an alleged fraudulent scheme, the complaint 16 does not necessarily have to identify the false statements made by 17 each defendant, but the complaint must inform each defendant of the 18 allegations surrounding its alleged participation in the fraud. 19 at 764-65. 20 21 Swartz v. KPMG When several defendants are Id. Plaintiff is given leave to amend his complaint to remedy the noted deficiencies. Plaintiff also may consider filing his 22 23 2 27 The Court cites Louisiana law because the real property at issue is alleged to be located in that State. This does not mean that the Court has concluded that Louisiana law applies to Plaintiff’s claims. The law regarding fraud under California law is similar to Louisiana’s. See Saldate v. Wilshire Credit Corp., 686 F. Supp. 2d 1051, 1063 (E.D. Cal. 2010) (elements of fraud in California are: (1) misrepresentation; (2) knowledge of the falsity; (3) intent to defraud; (4) justifiable reliance; and (5) resulting damage). 28 5 24 25 26 1 complaint in the state of Louisiana, where the real property at 2 issue is located and where, the Court assumes, Defendants are 3 located. 4 contacts with the state of California, they may not be subject to 5 personal jurisdiction in this district. 6 465 U.S. 783, 788 (1984) (“The Due Process Clause of the Fourteenth 7 Amendment to the United States Constitution permits personal 8 jurisdiction over a defendant in any State with which the defendant 9 has certain minimum contacts . . . such that the maintenance of the The Court notes that, if Defendants do not have sufficient See e.g. Calder v. Jones, 10 suit does not offend traditional notions of fair play and 11 substantial justice. . . . In judging minimum contacts, a court 12 properly focuses on the relationship among the defendant, the forum, 13 and the litigation.”). 14 refiling this action in state court. 15 16 Therefore, dismissal is without prejudice to IV For the foregoing reasons, Plaintiff’s Complaint is 17 DISMISSED WITHOUT PREJUDICE TO REFILING IN STATE COURT and is also 18 DISMISSED WITH LEAVE TO FILE A FIRST AMENDED COMPLAINT against all 19 Defendants that Plaintiff wishes to proceed against in this action. 20 If Plaintiff chooses to file a First Amended Complaint, the pleading 21 must be simple, concise and direct and must state clearly and 22 succinctly how each and every Defendant is alleged to have engaged 23 in conduct that gave rise to Plaintiff’s claims and, as discussed 24 above, the fraud claim must be alleged with particularity. 25 pleading must include the caption and civil case number used in this 26 order and the words COURT ORDERED FIRST AMENDED COMPLAINT on the 27 28 6 The 1 first page. 2 (28) twenty-eight days from the date of this order will result in 3 the dismissal of this action. 4 Failure to file a proper First Amended Complaint within If Plaintiff decides to re-file this action in Louisiana 5 state court, he shall so inform the Court, and this case will be 6 dismissed. 7 8 IT IS SO ORDERED. 9 DATED 10 11/07/2012 THELTON E. HENDERSON United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 G:\PRO-SE\TEH\CR.12\Pigg 12-5009-dis lack fed juris.wpd 23 24 25 26 27 28 7

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