Levy v. Vista Holdings et al

Filing 9

ORDER REVIEWING AMENDED COMPLAINT UNDER SECTION 1915 AND DISMISSING CASE. Signed by Magistrate Judge Jacqueline Scott Corley on 3/9/2017. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 3/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARC OLIN LEVY,

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Plaintiff,

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v.

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VISTA HOLDINGS, et al.,

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Defendants.

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United States District Court
Northern District of California

Case No.17-cv-00409-JSC
ORDER REVIEWING AMENDED
COMPLAINT UNDER SECTION 1915
AND DISMISSING CASE
Re: Dkt. No. 8

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Plaintiff Marc Olin Levy, representing himself, brings this civil action against Defendant

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Vista Holdings / Cashnet USA.1 (Dkt. No. 1.) On January 27, 2017, the Court reviewed

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Plaintiff’s complaint pursuant to 28 U.S.C. § 1915 and dismissed the complaint with leave to

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amend for failure to allege a basis for subject matter jurisdiction. (Dkt. No. 5.) The Court

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concluded that Plaintiff failed to allege facts to support diversity jurisdiction—the basis alleged in

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his complaint—and noted that while there may be a basis for federal question jurisdiction, the

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“only cause of action that Plaintiff explicitly mentions is fraud, which is a state common law claim

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insufficient to invoke federal question jurisdiction.” (Id. at 3.) The Court ordered Plaintiff to file

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an amended complaint by March 2, 2017 and noted that failure to file an amended complaint by

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that deadline would result in dismissal for lack of subject matter jurisdiction. (Id. at 4.)
In response to that Order, Plaintiff filed a letter stating that he “ha[s] decided to change

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[his] case from a ‘Diversity of Citizenship’ case to a ‘Federal Question’ case” and clarifying that

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the sole claim he brings against Defendant is fraud. (Dkt. No. 8.) The Local Rules require that

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“[a]ny party filing . . . an amended pleading must reproduce the entire proposed pleading and may

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Plaintiff has consented to this Court’s jurisdiction under 28 U.S.C. § 636(c). (Dkt. No. 3.)

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not incorporate any part of a prior pleading by reference.” N.D. Cal. Civ. L.R. 10-1. Thus,

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Plaintiff’s letter, which appears to rely on the factual allegations of his initial complaint, is

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improper. However, because Plaintiff is representing himself, the Court nevertheless construes the

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letter as an amended complaint incorporating the allegations of the initial complaint. So

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construed, Plaintiff still fails to establish a basis for subject matter jurisdiction. As the Court

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previously mentioned, fraud is a state common law claim insufficient to invoke subject matter

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jurisdiction as it does not “aris[e] under the Constitution, laws, or treatises of the United States.”

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28 U.S.C. § 1331.

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Elsewhere, Plaintiff alleges that “[t]his is an obvious case of fraud and other crimes” and
asks the Court to “inform [him] of the exact and specific crimes [Defendant] has committed

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United States District Court
Northern District of California

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against [him] in this case” because he is representing himself. (Dkt. No. 8.) Although the Court

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must read a pro se complaint liberally, even pro se plaintiffs must allege facts sufficient to provide

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fair notice to the defendant as to the nature of the plaintiff’s claims. See Ivey v. Bd. of Regents of

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Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The Court cannot divine those allegations and

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thus, the claims that follow, for a plaintiff. Moreover, to the extent that Plaintiff seeks to bring

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claims for violations of federal criminal statutes—like mail or wire fraud, 18 U.S.C. §§ 1341,

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1343—and asks the Court to identify claims for violations of other statutes, such claims are not

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cognizable because plaintiff, as a private citizen, does not have standing to prosecute crimes. See,

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e.g., McDonald v. Lee, No. 2:15-cv-1256-KJM-KJN PS, 2015 WL 2758012, at *3 (E.D. Cal. Aug.

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11, 2015) (on Section 1915 review, dismissing the plaintiff’s claims for violation of federal

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criminal statutes for lack of standing).

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Even if the Court were to assume that Plaintiff is proceeding under diversity jurisdiction,

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which he now expressly disclaims, the $75,000 amount in controversy is not met. See 28 U.S.C.

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§ 1332(a). While he demands $10,000,000.00 in his complaint, his claim arises from an $800

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loan. From the face of the complaint the Court can conclude to a legal certainty that there is less

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than $75,000 actually in controversy. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 402

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(9th Cir. 1996). Accordingly, diversity jurisdiction is not satisfied.

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Generally, “[d]ismissal without leave to amend is improper unless it is clear . . . that the
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complaint could not be saved by an amendment,” Moss v. U.S. Secret Serv., 572 F.3d 962, 972

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(9th Cir. 2009), and “a pro se litigant is entitled to notice of the complaint’s deficiencies and an

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opportunity to amend prior to dismissal of the action.” Lucas v. Dep’t of Corrs., 66 F.3d 245, 248

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(9th Cir. 1995). But “[t]he district court’s discretion to deny leave to amend is particularly broad

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where plaintiff has previously amended the complaint.” Cafasso, U.S. ex rel. v. Gen. Dynamics

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C4 Sys., 637 F.3d 1047, 1058 (9th Cir. 2011) (internal quotation marks and citations omitted).

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Here, the Court previously granted Plaintiff leave to amend and instructed Plaintiff regarding the

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subject matter jurisdiction deficiency. The Court specifically noted that fraud alone is not a

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sufficient basis for federal question jurisdiction, and the amended complaint fails to articulate any
other cognizable legal claims against Defendant that would give rise to federal question

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United States District Court
Northern District of California

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jurisdiction. And, as explained above, diversity jurisdiction is not available. The Court therefore

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finds that the deficiency in the amended complaint could not be cured by further amendment.

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As Plaintiff has not established that the Court has subject matter jurisdiction over this

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action, the Court DISMISSES the case without prejudice to Plaintiff filing in state court. The

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Clerk of Court shall close the file.

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IT IS SO ORDERED.
Dated: March 9, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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