Christopher v. Reaching Fourth Ministries et al

Filing 14

ORDER DISMISSING Plaintiff's First Amended Complaint for Lack of Subject Matter Jurisdiction. Court dismisses this action without prejudice. If Plaintiff wishes to file an amended complaint, he must do so by 11/24/2017. If Plaintiff fails to fil e the amended complaint within the specific time, Court will direct the Clerk to close the case. Court terminates as moot Defendants' 10 Motion to Dismiss for Lack of Personal Jurisdiction, and Plaintiff's 13 Motion for Extension of Time to Serve Defendants and Motion for U.S. Marshals to Effect Service. Signed by Judge Cynthia Bashant on 10/31/2017. (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 CARREA CHRISTOPHER, 13 Case No. 17-cv-00726-BAS-BLM Plaintiff, 14 ORDER DISMISSING FIRST AMENDED COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION v. 15 16 REACHING FOURTH MINISTRIES, et al., 17 18 Defendants. Plaintiff Carrea Christopher, proceeding in forma pauperis (“IFP”), has filed a 19 20 First Amendment Complaint (“FAC”). 21 §1915(e), this Court has conducted a mandatory screening of the FAC and 22 determined that dismissal is warranted for lack of subject matter jurisdiction. 23 I. 24 (ECF No. 6.) Pursuant to 28 U.S.C. BACKGROUND Plaintiff filed the original complaint on April 10, 2017, alleging claims of 25 negligence, fraud, and malpractice against multiple defendants. 26 Plaintiff also alleged claims of “intentional drained natural resources” and 27 “destruction and the drainage of land” located in Cherokee County, Texas. (Id.) 28 Plaintiff simultaneously filed a motion to proceed IFP, which this Court granted. –1– (ECF No. 1.) 17cv726 1 (ECF Nos. 2, 3.) After granting Plaintiff’s motion to proceed IFP, the Court 2 conducted a mandatory screening of the Complaint, as required by 28 U.S.C. §1915. 3 (ECF No. 3.) The Court determined that it did not have subject matter jurisdiction 4 over the case because the Plaintiff failed to allege citizenship of the individual and 5 corporate defendants for the purposes of invoking diversity jurisdiction. (Id. at 4.) 6 The Court dismissed the Complaint without prejudice. 7 Plaintiff subsequently filed the FAC on April 28, 2017. (ECF No. 6) He now 8 alleges that he is a resident of both California and Washington. (Id. at 2.) He alleges 9 that the Defendants’ principal place of business and incorporation as well as 10 residence is Texas. (Id.) Plaintiff also alleges that two of the Defendants named in 11 the FAC, Ava Taji and Gillian Dandekar, are California real estate brokers. (Id. at 12 28−31.) The Court did not conduct a mandatory screening of the FAC after its filing. 13 The Court does so now. 14 II. LEGAL STANDARD A complaint filed by any litigant proceeding IFP is subject to mandatory 15 16 screening by the court in which the complaint is brought. See 28 U.S.C. 17 §1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he 18 provisions of 28 U.S.C. §1915(e)(2)(B) are not limited to prisoners.”). 19 §1915(e)(2), the court must dismiss a case if the court determines that the action is 20 frivolous or malicious, fails to state a claim, or seeks monetary relief against persons 21 immune from suit. In addition—and separate from the pre-screening requirements 22 of § 1915(e)—“federal courts have a duty to raise and decide issues of subject matter 23 jurisdiction sua sponte, if at any time it appears that subject matter jurisdiction may 24 be lacking.” Bank Julius Baer & Co. Ltd v. Wikileaks, 535 F. Supp. 2d 980, 984 25 (N.D. Cal. 2008) (citations omitted). “Where a court lacks subject matter jurisdiction, 26 it must dismiss the complaint in its entirety.” Adames v. Taju, 80 F. Supp. 3d 465, 27 467 (E.D.N.Y. 2015) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)). 28 III. Under DISCUSSION –2– 17cv726 1 The Court finds that Plaintiff has failed to correct the pleading deficiency that 2 warranted dismissal of the original complaint for lack of subject matter jurisdiction. 3 To invoke diversity jurisdiction, there must be complete diversity of citizenship 4 between the parties and the amount of controversy must exceed $75,000. See 5 Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806); 28 U.S.C. §1332(a). Complete 6 diversity exists when “the citizenship of each plaintiff is diverse from the citizenship 7 of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 8 Plaintiff alleges that he is a resident of both California and Washington. (ECF 9 No. 6 at 2.) For the purposes of diversity jurisdiction, a natural person’s citizenship 10 is determined by the state of domicile, not the state of residence. Kanter v. Warner- 11 Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). A person’s domicile is his 12 permanent home, where he resides with the intention to remain or to which he intends 13 to return. Id. Plaintiff’s new allegations of residence in two states are insufficient to 14 show his state citizenship. Moreover, to the extent Plaintiff is in fact domiciled in 15 the state of California (which appears to be the case), complete diversity will not exist 16 in this case as long as any named Defendant is also a citizen of California. Although 17 Plaintiff alleges that “the Defendants principal place of business and incorporation as 18 well as residence is Texas,” (ECF No. 6 at 2), Plaintiff has also named two 19 Defendants, Ava Taji and Gillian Dandekar, who are alleged to be California real 20 estate brokers. (Id. at 28−31.) The Court is not satisfied that there is the requisite 21 diversity in this case to support its subject matter jurisdiction over Plaintiff’s claims. 22 Even if the Plaintiff corrects the deficiencies in the FAC, the Court observes 23 that venue in the United States District Court for the Southern District of California 24 is likely improper. “A civil action may be brought in: (1) a judicial district in which 25 any defendant resides, if all defendants are residents of the State in which the district 26 is located; (2) a judicial district in which a substantial part of the events or omissions 27 giving rise to the claim occurred, or a substantial part of the property that is the 28 subject of the action is situated; or (3) if there is no district in which any action may –3– 17cv726 1 otherwise be brought as provided in this section, any judicial district in which any 2 defendant is subject to the court’s personal jurisdiction with respect to such action.” 3 28 U.S.C. §1391(b). Section 1391(b)(1) is inapplicable based on the allegations in 4 the FAC because all the Defendants do not reside in the same state. 5 1391(b)(2), however, would indicate that venue is likely proper in a judicial district 6 in Texas because a substantial part of the events or omissions alleged in the FAC 7 occurred in that state. Moreover, the property that is the subject of the alleged fraud 8 and which Plaintiff alleges was illegally drained is situated in Cherokee County, 9 Texas. (ECF No. 6 at 25.) The Court advises the Plaintiff that any amended 10 complaint filed with this Court may be subject to dismissal for lack of proper venue. 11 IV. Section CONCLUSION & ORDER 12 For the foregoing reasons, the Court HEREBY DISMISSES this action 13 without prejudice. If the Plaintiff wishes to file an amended complaint, he must do 14 so no later than November 24, 2017. The Court advises the Plaintiff that if he 15 chooses to file a second amended complaint, it will be subject to another mandatory 16 screening pursuant to 28 U.S.C. §1915. If the Plaintiff fails to file an amended 17 complaint within the specific time, the Court will direct the Clerk to close the case. 18 The Court TERMINATES AS MOOT Defendants’ Motion to Dismiss for 19 Lack of Personal Jurisdiction (ECF No. 10), and Plaintiff’s Motion Requesting an 20 Extension of Time to Serve Defendants and Motion for Service by the United States 21 Marshal (ECF No. 13). 22 23 IT IS SO ORDERED. DATED: October 31, 2017 24 25 26 27 28 –4– 17cv726

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