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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C-12-5009 TEH (PR)

RANDY PIGG,
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Plaintiff,
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v.
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United States District Court
For the Northern District of California

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

GERTRUDE GAMBLE, JOHN M. PARSONS,
JOHNSTON H. CHANDLER and ERNEST
TERRELL, JR.,

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Defendants.
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Plaintiff Randy Pigg, a state inmate incarcerated at the

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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.

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In his complaint, Plaintiff alleges that Defendants

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This action is now

before the Court for review under 28 U.S.C. § 1915A.

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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.
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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.

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Plaintiff alleges that Ernest Terrell Jr. “purports to have sold his

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interest in the Gamble property to give the impression that he sold

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his interest in the DeSoto Parish Property with all of the fellow

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heirs.

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deceive the fellow heirs.

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property in question, plus mineral interest.”

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allegations, Plaintiff asserts the claims of fraud and “disputed

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title.”

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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

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closing all lease roads entering and exiting the Gamble estate

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property; dissolution of all oil and gas lease contracts; an

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accounting concerning all financial matters of the Gertrude Gamble

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estate property; an order directing the State of Louisiana

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Commissioner of Conservation to release all records concerning the

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Parsons Well Unit and other forms of injunctive relief.

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II

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A federal court must engage in a preliminary screening of

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any case in which a prisoner seeks redress from a governmental

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entity or officer or employee of a governmental entity.

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§ 1915A(a).

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forma pauperis, a court must engage in a preliminary screening of

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the complaint when it alleges claims against private individuals or

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entities.

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must identify any cognizable claims, and dismiss any claims which

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are frivolous, malicious, fail to state a claim upon which relief

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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).

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28 U.S.C.

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Under both statutes, the court

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immune from such relief.

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Pro se pleadings must be liberally construed.

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F.3d 338, 342 (9th Cir. 2010).

28 U.S.C. §§ 1915A(b) and 1915(e)(2).

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Hebbe v. Pliler, 627

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"Federal courts are courts of limited jurisdiction.

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possess only that power authorized by Constitution and statute,

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. . . which is not to be expanded by judicial decree."

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Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

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They

is presumed to lack jurisdiction unless the contrary appears

Kokkonen v.
The court

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affirmatively from the record.

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U.S. 332, 342 n.3 (2006).

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jurisdiction sua sponte before proceeding to the merits of a case.

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S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th

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Cir. 1990).

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subject-matter jurisdiction, the court must dismiss the action."

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Fed. R. Civ. P. 12(h)(3).

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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

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either federal question or diversity jurisdiction.

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jurisdiction statute confers jurisdiction in cases where the parties

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are citizens of different states and where the amount in controversy

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exceeds $75,000.

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strictly construed, and any doubts are resolved against finding

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jurisdiction.

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1092 (9th Cir. 1983).

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jurisdictional fact in diversity actions, the burden is on the

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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

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The diversity

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prove such facts.

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828 F.2d 546, 552 (9th Cir. 1987).

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Bautista v. Pan American World Airlines, Inc.,

On the cover sheet of his complaint, Plaintiff has checked

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the box indicating that the basis of jurisdiction is diversity.

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has also checked the boxes indicating that he is a citizen of this

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state and that Defendants are incorporated and have their principal

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place of business in another state.

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demands $10,000,000 in damages.

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appears that Plaintiff may meet the requirements for diversity

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He

He also indicates that he

Thus, from the cover sheet, it

jurisdiction.

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However, as indicated above, it is not clear from

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Plaintiff’s complaint which individuals or businesses he is actually

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suing.

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Plaintiff must specify the state of citizenship for each individual

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and business he is suing.

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citizen of California, diversity jurisdiction exists only if all

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named Defendants are citizens of states other than California.

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Therefore, this complaint is dismissed for lack of diversity

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jurisdiction.

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and, thus, there is no federal question jurisdiction here.

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U.S.C. § 1332.

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allege that there is complete diversity between the parties.

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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

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another reason.

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not adequately alleged.

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conduct that gives rise to each claim.

Plaintiff’s claims of fraud and disputed title are
Plaintiff must allege each Defendant’s

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See 28

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Furthermore, claims of fraud

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must be stated with particularity.

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(party alleging fraud “must state with particularity the

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circumstances constituting fraud or mistake”).

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See Fed. R. Civ. Pro. 9(b)

In Louisiana, the elements of a claim of fraud are “a

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misrepresentation of material fact made with the intent to deceive

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when there was reasonable or justifiable reliance by the plaintiff

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and resulting injury.”

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3d 398, 404-05 (La. App. 5 Cir. 2012).2

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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

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Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003).

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To adequately plead fraud, a plaintiff must allege the circumstances

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of the fraudulent conduct which includes the time, place and nature

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of the alleged fraudulent activities or statements.

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LLP, 476 F.3d 756, 764 (9th Cir. 2007).

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sued in connection with an alleged fraudulent scheme, the complaint

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does not necessarily have to identify the false statements made by

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each defendant, but the complaint must inform each defendant of the

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allegations surrounding its alleged participation in the fraud.

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at 764-65.

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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

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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).

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complaint in the state of Louisiana, where the real property at

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issue is located and where, the Court assumes, Defendants are

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located.

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contacts with the state of California, they may not be subject to

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personal jurisdiction in this district.

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465 U.S. 783, 788 (1984) (“The Due Process Clause of the Fourteenth

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Amendment to the United States Constitution permits personal

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jurisdiction over a defendant in any State with which the defendant

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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,

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suit does not offend traditional notions of fair play and

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substantial justice. . . . In judging minimum contacts, a court

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properly focuses on the relationship among the defendant, the forum,

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and the litigation.”).

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refiling this action in state court.

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Therefore, dismissal is without prejudice to

IV
For the foregoing reasons, Plaintiff’s Complaint is

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DISMISSED WITHOUT PREJUDICE TO REFILING IN STATE COURT and is also

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DISMISSED WITH LEAVE TO FILE A FIRST AMENDED COMPLAINT against all

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Defendants that Plaintiff wishes to proceed against in this action.

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If Plaintiff chooses to file a First Amended Complaint, the pleading

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must be simple, concise and direct and must state clearly and

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succinctly how each and every Defendant is alleged to have engaged

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in conduct that gave rise to Plaintiff’s claims and, as discussed

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above, the fraud claim must be alleged with particularity.

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pleading must include the caption and civil case number used in this

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order and the words COURT ORDERED FIRST AMENDED COMPLAINT on the

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The

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first page.

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(28) twenty-eight days from the date of this order will result in

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the dismissal of this action.

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Failure to file a proper First Amended Complaint within

If Plaintiff decides to re-file this action in Louisiana

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state court, he shall so inform the Court, and this case will be

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dismissed.

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IT IS SO ORDERED.

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DATED
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11/07/2012
THELTON E. HENDERSON
United States District Judge

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