Kumvachirapitag v. Gates et al

Filing 23

ORDER DISMISSING SECOND AMENDED COMPLAINT. Signed by Judge Jacqueline Scott Corley on November 15, 2012. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 11/15/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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SUKIT KUMVACHIRAPITAG,
Plaintiff,

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Case No.: 12-5075 JSC
ORDER DISMISSING SECOND
AMENDED COMPLAINT (Dkt. No. 21)

v.
BILL GATES, et al.,

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Defendants.

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Plaintiff, proceeding pro se, filed this action against numerous Defendants “for all frauds and

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all the corruptions for past [sic] 14 fourteen [sic] years.”1 (Dkt. No. 21 at 16.) Plaintiff initially filed

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this action on October 3, 2012 (Dkt. No. 1), and on October 10, 2012, filed an Amended Complaint

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(Dkt. No. 5), which was dismissed without prejudice. (Dkt. No. 12.) On November 8, 2012, Plaintiff

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filed a nearly identical Second Amended Complaint (“SAC”). (Dkt. No. 21.) Plaintiff brings similar

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claims against many of the same defendants as those dismissed with prejudice on October 12, 2011 in

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Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of a United States
magistrate judge (Dkt. No. 6), and Defendants, not yet served in accordance with Rule 4 of the
Federal Rules of Civil Procedure, are not parties to this case. See Third World Media, LLC v. Does 11568, 2011 WL 4344160 *3 (N.D. Cal. Sept. 15, 2011).

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Case Nos. 11-4510 (JSW) (Dkt. No. 18) and 11-4405 (JSW) (Dkt. No. 15). Plaintiff’s SAC again fails

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to state a claim and is DISMISSED with prejudice as outlined below.

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DISCUSSION

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The Court has an independent obligation to determine subject matter jurisdiction over an

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action. United States v. Moreno-Morillo, 334 F.3d 819, 830 (9th Cir. 2003). The plaintiff has the

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burden to establish that subject matter jurisdiction is proper. Tobar v. United States, 2008 WL 151549

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*2 (S.D. Cal. Jan. 15, 2008) (citing Assoc. of Medical Colleges v. United States, 217 F.3d 770, 778-

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779 (9th Cir. 2000)). The face of the complaint must state the grounds for federal subject matter

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jurisdiction over an action. See Fed. R. Civ. P. Rule 8(a); Kats v. Lucile Salter Packard Children's

subject matter jurisdiction by making a federal claim or pleading diversity jurisdiction. See 28 USC

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Northern District of California

Hosp. at Stanford, 1995 WL 463668 *1 (N.D. Cal. July 17, 1995). Plaintiff can allege proper federal

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United States District Court

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§§ 1331, 1332. In addition to properly pleading subject matter jurisdiction, a complaint must state a

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claim upon which legal relief may be granted. A complaint fails to state an actionable claim if a

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plaintiff does not allege the “grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007) (quotation omitted). Essentially, a plaintiff must plead “factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Venue must also be proper in the judicial

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district in which a complaint is brought. See 28 U.S.C. §1391.

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In its previous order dismissing Plaintiff’s Amended Complaint, the Court found that it could

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not infer diversity jurisdiction or venue from the Amended Complaint as drafted, even under liberal

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construction. (Dkt. No. 12 at 3.) Specifically, the Court found that Plaintiff had failed to articulate an

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amount in controversy, and even if Plaintiff did seek the many “septillions” of dollars listed in the

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Amended Complaint as damages, he failed to link these claims to any loss he has suffered due to an

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action by the Defendants. (Id.) Nor, the Court found, did the Amended Complaint articulate subject

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matter jurisdiction on the basis of a federal question. (Id.) The Court found the Amended Complaint

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indecipherable, lacking “any discernible facts that enable the Court to draw an inference that

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misconduct has occurred, let alone that Defendants are individually or in aggregate responsible to

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Plaintiff for that misconduct.” (Id. at 3-4.) The Court instructed Plaintiff that if he were to file another

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amended complaint, “[it] must specifically state the theory under which Plaintiff maintains this Court

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has subject matter jurisdiction and venue. Plaintiff must also cite specific misconduct by each named

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Defendant linked to a cognizable legal theory. Failure to cure these pleading defects may result in

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dismissal of this action with prejudice.” (Id. at 4.)

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Because Plaintiff’s SAC fails to address the subject matter jurisdiction and venue issues raised

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by the Court in its previous dismissal order, Plaintiff’s SAC must be dismissed. The SAC is a virtual

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copy of Plaintiff’s previous complaint and provides no decipherable information or facts that could

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support a finding of subject matter jurisdiction or proper venue. As with Plaintiff’s Amended

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Complaint, the SAC also does not state a claim upon which relief may be based. See Fed. R. Civ. P.

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12(b)(6). Plaintiff’s SAC is devoid of any facts that allow the Court to draw an inference that

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misconduct has occurred and that Defendants are somehow responsible for that conduct.
CONCLUSION

Northern District of California

United States District Court

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For the reasons stated above, Plaintiff’s complaint is DISMISSED with prejudice. Leave to

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amend may be denied “where the amendment would be futile.” Gardner v. Martino, 563 F.3d 981,

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990 (9th Cir. 2009); see also Semiconductor Energy Lab. Co., Ltd. v. Yujurio Nagata, 2012 WL

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177557 *8 n.6 (N.D. Cal. Jan. 23, 2012) (finding that further amendment can be denied as futile,

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particularly when a plaintiff has already amended the complaint once). The Court concludes that

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Plaintiff failed to cure the pleading defects in this action in his SAC and that any further amendment

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would be futile.

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IT IS SO ORDERED.
Dated: November 15, 2102

_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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