Jewainat v. Indymack Bank

Filing 9

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 8/28/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-1516-GPG
MAZEN I. JEWAINAT,
Plaintiff,
v.
INDYMACK BANK,
Defendant.

ORDER TO AMEND

Plaintiff, Mazen I. Jewainat, initiated this action by filing a Complaint (ECF No. 1)
in which he alleges that he suffered damages as a result of the declining housing
economy in California. Mr. Carter does not assert a jurisdictional basis for his
Complaint, nor does he assert any specific claims or a request for relief.
Mr. Jewainat has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to
dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against a defendant who is immune from such relief. A legally frivolous
claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams,
490 U.S. 319, 324 (1989). Under § 1983, a plaintiff must allege that the defendants
have violated his or her rights under the Constitution and laws of the United States while
they acted under color of state law. Adickes v. S. H. Kress & Co, 398 U.S. 144, 150
(1970).
The Court must construe Mr. Jewainat’s Complaint liberally because he is not

represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the complaint reasonably can be read
“to state a valid claim on which the plaintiff could prevail, [the Court] should do so
despite the plaintiff's failure to cite proper legal authority, his [or her] confusion of
various legal theories, his [or her] poor syntax and sentence construction, or his [or her]
unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, the Court
does not act as an advocate for a pro se litigant. See id. Moreover, a pro se party must
follow the same procedural rules that govern other litigants. Kay v. Bemis, 500 F.3d
1214, 1218 (10th Cir. 2007). The Court has reviewed the Complaint and finds that it fails
to allege an adequate basis to invoke this Court’s subject matter jurisdiction and/or that
it is barred by the applicable statute of limitations.
“Federal courts are courts of limited jurisdiction; they must have a statutory basis
for their jurisdiction.” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). In
every case and at every stage of the proceeding, a federal court must satisfy itself as to
its own jurisdiction, even if doing so requires sua sponte action. Citizens Concerned for
Separation of Church & State v. City & County of Denver, 628 F.2d 1289, 1297 (10th Cir.
1980). Absent an assurance that jurisdiction exists, a court may not proceed in a case.
See Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d 1238, 1245 (10th Cir.
2005). Courts are well-advised to raise the issue of jurisdiction on their own, regardless
of parties’ apparent acquiescence. First, it is the Court’s duty to do so. See Laughlin v.
Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995) (“[I]f the parties fail to raise the question
of the existence of jurisdiction, the federal court has the duty to raise and resolve the
matter.”). See Fed. R. Civ. P. 12(h)(3) (“Whenever it appears by suggestion of the

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parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall
dismiss the action.”). See also McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252
(10th Cir. 1988) (The issue of subject matter jurisdiction may be raised sua sponte by the
court at any time during the course of the proceedings.). Second, “[s]ubject matter
jurisdiction cannot be conferred or waived by consent, estoppel, or failure to challenge
jurisdiction early in the proceedings.” Laughlin, 50 F.3d at 873. Finally, delay in
addressing the issue only compounds the problem if it turns out that, despite much time
and expense having been dedicated to a case, a lack of jurisdiction causes it to be
dismissed or remanded regardless of the stage it has reached. See U.S. Fire Ins. Co.
v. Pinkard Const. Co., Civil No. 09-cv-00491-PAB-MJW, 2009 WL 2338116, at *3 (D.
Colo. July 28, 2009).
Rule 8 of the Federal Rules of Civil Procedure requires that a complaint must
contain “a short and plain statement of the grounds for the court’s jurisdiction.” Fed. R.
Civ. P. 8(a)(1). The complaint does not contain a statement of jurisdiction.
There are two statutory bases for federal subject matter jurisdiction: federal
question jurisdiction under 28 U.S.C. § 1331; and diversity jurisdiction under 28 U.S.C.
§ 1332. In the Complaint, Mr. Jewainat does not allege a statutory basis to invoke the
Court’s federal question jurisdiction pursuant to 28 U.S.C. § 1331. Moreover, to the
extent he would assert jurisdiction under 42 U.S.C. § 1983, his allegations do not
support the claim. “[T]o state a § 1983 claim, a plaintiff must ‘allege the violation of a
right secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.’” Bruner
v. Baker, 506 F.3d 1021, 1025-26 (10th Cir. 2007) (quoting West v. Atkins, 487 U.S. 42,

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48 (1988)). Mr. Jewainat’s allegations are against a private entity and do not
demonstrate state action or a constitutional deprivation so as to implicate the Court’s
federal question jurisdiction.
This Court may exercise diversity jurisdiction over a state law claim, pursuant to
28 U.S.C. § 1332, if a plaintiff presents a claim between parties of diverse citizenship
that exceeds the required jurisdictional amount, currently $75,000. See 28 U.S.C.
§ 1332(a); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). To demonstrate
federal jurisdiction pursuant to § 1332, allegations of diversity must be pleaded
affirmatively. See Penteco Corp. Ltd. Partnership-1985A v. Union Gas Sys., Inc., 929
F.2d 1519, 1521 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 8(a)(1)
(pleading must contain "a short and plain statement of the grounds for the court’s
jurisdiction").
Plaintiff fails to provide a short and plain statement of his claims showing that he
is entitled to relief. The complaint is repetitive, prolix, and fails to assert personal
participation. See Hart v. Salois, 2015 WL 1020369, *5, — F. App’x — (10th Cir. Mar.
10, 2015) (Plaintiff’s “multiple collective allegations against the defendants and
corresponding failure to identify each individual defendant’s culpable actions only
exacerbated this significant deficiency.”) Also, Defendants are not required to “piece
together the plaintiff’s complaint.” See Glenn v. First Nat’l Bank in Grand Junction, 868
F.2d 368, 371 (10th Cir. 1989) (internal quotations omitted).
In addition, to state a claim in federal court Plaintiff must explain (1) what a
defendant did to him; (2) when the defendant did it; (3) how the defendant’s
action harmed him; and (4) what specific legal right the defendant violated.

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Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Plaintiff also is required to assert personal participation by each named defendant in the
alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
Cir. 1976). To establish personal participation, Plaintiff must show how each named
individual caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S.
159, 166 (1985). There must be an affirmative link between the alleged constitutional
violation and each defendant’s participation, control or direction, or failure to supervise.
See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).
Here, the Plaintiff is a citizen of Colorado and it appears that the Defendant is a
California Bank. He appears to be alleging a breach of contract against the Defendant,
which may be in an amount greater than $75,000.00. Thus, Mr. Jewainat’s allegations
may be sufficient to invoke this Court’s diversity jurisdiction. Notwithstanding, his claims
appear to be barred by the statute of limitations.
In this regard, Plaintiff’s allegations and exhibits show that he made certain
payments relating to real property located in California in the Spring of 2007 (ECF No.
1-1, pp. 1-2). On March 10, 2010, he wrote a letter to OneWest Bank concerning his
loan and a request for his attorney (ECF No. 1-1, p. 4). Thus, it appears that the breach
of contract occurred sometime prior to March 9, 2010. Plaintiff filed this lawsuit on July
16, 2015. In California there is a four year statute of limitations governing breach of
contract actions, see Cal. Civ. Proc. Code § 337. Thus, any breach of contract that
occurred prior to July 16, 2011 is barred by the statute of limitations.
The Court, therefore, will direct Plaintiff to submit an Amended Complaint that
complies with the findings of this Order. Accordingly, it is

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ORDERED that within thirty days from the date of this Order, Plaintiff shall
file an Amended Complaint on the Court-approved form that complies with this Order. It
is
FURTHER ORDERED that if Plaintiff fails to file an Amended Complaint that
complies with this Order, within the time allowed, the Court will dismiss this action
without further notice.
DATED August 28, 2015, at Denver, Colorado.
BY THE COURT:
s/Gordon P. Gallagher
United States Magistrate Judge

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