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

Filing 8


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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 JAMES M. SCHMIDT and ROBERT M. SCHMIDT, 10 No. C 12-05677 JSW 11 v. For the Northern District of California United States District Court Plaintiffs, 12 13 ORDER ADOPTING REPORT AND RECOMMENDATION OF DISMISSAL WITHOUT PREJUDICE JP MORGAN CHASE BANK, N.A., CALIFORNIA RECONVEYANCE COMPANY, 14 Defendants. 15 / 16 17 On November 5, 2012, Plaintiffs filed applications to proceed in forma pauperis and a 18 Complaint. On January 11, 2013, Magistrate Judge Jaqueline Scott Corley, to whom the case 19 originally was assigned, issued a Report and Recommendation in which she recommended that: 20 (1) the Court grant Plaintiffs’ applications to proceed in forma pauperis; and (2) dismiss the 21 Complaint because Plaintiffs had not sufficiently alleged that there was a basis for federal 22 jurisdiction. Judge Corley noted that Plaintiffs’ complaint only set forth state law causes of 23 action and failed to establish complete diversity of parties. The Court has received no 24 objections and the time for filing objections has passed. 25 The Court has considered Magistrate Judge Corley’s Report and Recommendation and 26 concludes that Report is well-reasoned. Therefore, for the reasons articulated by Judge 27 Corley’s and for the additional reasons set forth herein, the Court adopts Judge Corley’s Report 28 and Recommendation. 1 Although the Court GRANTS Plaintiffs’ request to proceed in forma pauperis, as Judge 2 Corley noted, the in forma pauperis statute provides that the Court shall dismiss the case if, 3 inter alia, the Complaint fails to state a claim on which relief may be granted. 28 U.S.C. 4 § 1915(e)(2)(B). Federal courts are under a duty to raise and decide issues of subject matter 5 jurisdiction sua sponte at any time it appears subject matter jurisdiction may be lacking. Fed. 6 R. Civ. P. 12; Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). If the Court 7 determines that subject matter jurisdiction is lacking, the Court must dismiss the case. Id.; Fed. 8 R. Civ. P. 12(h)(3). 9 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 11 For the Northern District of California United States District Court 10 Constitution or Congress authorize them to adjudicate: those cases involving diversity of 12 citizenship (where the parties are from diverse states), or a federal question, or those cases to 13 which the United States is a party. See, e.g., Kokkonen v. Guardian Life Insurance Co. of 14 America, 511 U.S. 375 (1994). Federal courts are presumptively without jurisdiction over civil 15 cases and the burden of establishing the contrary rests upon the party asserting jurisdiction. Id. 16 at 377. It is undisputed that the United States is not a party to this case. It is evident from the 17 Complaint that Plaintiffs are residents of California. Although Plaintiffs allege that California 18 Reconveyance Company is a Delaware corporation, it is, in fact a California corporation and ac 19 citizen of California. Thus, complete diversity does not exist. 20 However, because the Court cannot say there is no legal theory upon which Plaintiffs 21 could assert a basis for federal jurisdiction, it shall give the Plaintiffs one further opportunity to 22 file an amended complaint that sets forth a viable basis for federal jurisdiction. Plaintiffs shall 23 file an amended complaint by no later than March 8, 2013. If Plaintiffs fail to file an amended 24 complaint by that date, the Court shall dismiss this case without prejudice. 25 The Court HEREBY ADVISES Plaintiffs that a Handbook for Pro Se Litigants, which is 26 available through the Court’s website or in the Clerk’s office, contains helpful information 27 about proceeding without an attorney. The Court also advises Plaintiffs that they also may wish 28 to seek assistance from the Legal Help Center. Plaintiffs may call the Legal Help Center at 2 1 415-782-9000, extension 8657, or sign up on the 15th Floor of the Courthouse, Room 2796, for 2 a free appointment with an attorney who may be able to provide basic legal help, but not legal 3 representation. 4 5 IT IS SO ORDERED. Dated: February 13, 2013 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 JAMES M. SCHMIDT ET.AL. et al, Case Number: CV12-05677 JSW 6 Plaintiff, CERTIFICATE OF SERVICE 7 v. 8 JP MORGAN CHASE BANK, N.A. 9 ET.AL. et al, Defendant. / 11 For the Northern District of California United States District Court 10 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. 13 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. 16 17 James M. Schmidt 18 Robert M. Schmidt 2260 Maximilian Drive 19 Campbell, CA 95008 20 Dated: February 13, 2013 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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