Schmidt et al v. JP Morgan Chase Bank, N.A. et al

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION OF DISMISSAL WITHOUT PREJUDICE. Signed by Judge JEFFREY S. WHITE on 2/13/13. (jjoS, COURT STAFF) (Filed on 2/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JAMES M. SCHMIDT and ROBERT M.
SCHMIDT,

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No. C 12-05677 JSW

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v.
For the Northern District of California

United States District Court

Plaintiffs,
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ORDER ADOPTING REPORT
AND RECOMMENDATION OF
DISMISSAL WITHOUT
PREJUDICE

JP MORGAN CHASE BANK, N.A.,
CALIFORNIA RECONVEYANCE
COMPANY,

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Defendants.
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On November 5, 2012, Plaintiffs filed applications to proceed in forma pauperis and a

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Complaint. On January 11, 2013, Magistrate Judge Jaqueline Scott Corley, to whom the case

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originally was assigned, issued a Report and Recommendation in which she recommended that:

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(1) the Court grant Plaintiffs’ applications to proceed in forma pauperis; and (2) dismiss the

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Complaint because Plaintiffs had not sufficiently alleged that there was a basis for federal

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jurisdiction. Judge Corley noted that Plaintiffs’ complaint only set forth state law causes of

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action and failed to establish complete diversity of parties. The Court has received no

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objections and the time for filing objections has passed.

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The Court has considered Magistrate Judge Corley’s Report and Recommendation and

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concludes that Report is well-reasoned. Therefore, for the reasons articulated by Judge

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Corley’s and for the additional reasons set forth herein, the Court adopts Judge Corley’s Report

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and Recommendation.

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Although the Court GRANTS Plaintiffs’ request to proceed in forma pauperis, as Judge

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Corley noted, the in forma pauperis statute provides that the Court shall dismiss the case if,

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inter alia, the Complaint fails to state a claim on which relief may be granted. 28 U.S.C.

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§ 1915(e)(2)(B). Federal courts are under a duty to raise and decide issues of subject matter

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jurisdiction sua sponte at any time it appears subject matter jurisdiction may be lacking. Fed.

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R. Civ. P. 12; Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). If the Court

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determines that subject matter jurisdiction is lacking, the Court must dismiss the case. Id.; Fed.

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

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Federal courts are courts of limited jurisdiction. See, e.g., Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal courts can only adjudicate cases which the

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For the Northern District of California

United States District Court

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Constitution or Congress authorize them to adjudicate: those cases involving diversity of

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citizenship (where the parties are from diverse states), or a federal question, or those cases to

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which the United States is a party. See, e.g., Kokkonen v. Guardian Life Insurance Co. of

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America, 511 U.S. 375 (1994). Federal courts are presumptively without jurisdiction over civil

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cases and the burden of establishing the contrary rests upon the party asserting jurisdiction. Id.

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at 377. It is undisputed that the United States is not a party to this case. It is evident from the

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Complaint that Plaintiffs are residents of California. Although Plaintiffs allege that California

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Reconveyance Company is a Delaware corporation, it is, in fact a California corporation and ac

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citizen of California. Thus, complete diversity does not exist.

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However, because the Court cannot say there is no legal theory upon which Plaintiffs

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could assert a basis for federal jurisdiction, it shall give the Plaintiffs one further opportunity to

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file an amended complaint that sets forth a viable basis for federal jurisdiction. Plaintiffs shall

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file an amended complaint by no later than March 8, 2013. If Plaintiffs fail to file an amended

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complaint by that date, the Court shall dismiss this case without prejudice.

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The Court HEREBY ADVISES Plaintiffs that a Handbook for Pro Se Litigants, which is

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available through the Court’s website or in the Clerk’s office, contains helpful information

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about proceeding without an attorney. The Court also advises Plaintiffs that they also may wish

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to seek assistance from the Legal Help Center. Plaintiffs may call the Legal Help Center at
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415-782-9000, extension 8657, or sign up on the 15th Floor of the Courthouse, Room 2796, for

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a free appointment with an attorney who may be able to provide basic legal help, but not legal

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representation.

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IT IS SO ORDERED.
Dated: February 13, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES M. SCHMIDT ET.AL. et al,

Case Number: CV12-05677 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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JP MORGAN CHASE BANK, N.A.
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Defendant.

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For the Northern District of California

United States District Court

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12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
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That on February 13, 2013, I SERVED a true and correct copy(ies) of the attached, by
14 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
15 inter-office delivery receptacle located in the Clerk's office.
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James M. Schmidt
18 Robert M. Schmidt
2260 Maximilian Drive
19 Campbell, CA 95008
20 Dated: February 13, 2013
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk