Evans v. Leap Frog Group et al

Filing 10

ORDER DISMISSING FIRST AMENDED COMPLAINT AND DENYING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT re 8 , 9 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/26/13. " Evans may file a Secon d Amended Complaint that is complete in itself (that is, does not incorporate any prior complaint by reference) no later than July 12, 2013. He must also either pay the civil filing fee or submit a new IFP. Failure to meet the above deadline shall cause this action to be automatically dismissed. Given the court's dismissal of Evanss Complaint, the court denies Evans's IFP as moot." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Brian Evans served by first class mail at the address of record on June 26, 2013. A copy of the court's Application to Proceed In Forma Pauperis form shall be included in the mailing to Mr. Evans.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRIAN EVANS,

)
)
Plaintiff,
)
)
vs.
)
)
LEAPFROG, ET AL.,
)
)
)
Defendants.
_____________________________ )

CIVIL NO. 13-00269 SOM/KSC
ORDER DISMISSING FIRST
AMENDED COMPLAINT AND DENYING
PLAINTIFF’S APPLICATION TO
PROCEED WITHOUT PREPAYING
FEES OR COSTS AS MOOT

ORDER DISMISSING FIRST AMENDED COMPLAINT AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT
On May 28, 2013, Plaintiff Brian Evans filed a
Complaint in this action.

ECF No. 1.

That same day, Evans filed

an application to proceed without prepayment of fees and costs
(the “IFP”).

ECF No. 3.

On May 31, 2013, this court dismissed

the Complaint and denied as moot the motion to proceed without
prepayment of fees because Evans fails to allege subject matter
jurisdiction sufficiently.

ECF No. 5.

Amended Complaint on June 18, 2013.

Evans filed his First

ECF No. 8.

Because Evans

again fails to adequately assert subject matter jurisdiction,
this court dismisses Evans’s First Amended Complaint and denies
his second IFP as moot.
A United States district court has diversity
jurisdiction over an action when the amount in controversy
exceeds $75,000, excluding interest and costs, and the action is
between citizens of different states.”
(emphasis added).

28 U.S.C. § 1332(a)(1)

In a diversity action, the plaintiff “should

be able to allege affirmatively the actual citizenship of the
relevant parties.”

Kanter v. Warner-Lambert Co., 265 F.3d 853,

857 (9th Cir. 2001).

Evans asserts that he is a “resident” of

Hawaii, but he fails to identify either his citizenship or
Defendants’ respective citizenships.

See id. (noting that § 1332

“speaks of citizenship, not of residency”).

This deficiency

precludes the court from ascertaining whether diversity
jurisdiction exists, and the court must therefore dismiss Evans’s
First Amended Complaint.

See Morongo Band of Mission Indians v.

Cal. State Bd. Of Equalization, 858 F.2d 1376 1380 (1988) (“If
jurisdiction is lacking at the outset, the district court has ‘no
power to do anything with the case except dismiss.’”) (citing 15
C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure
§ 3844, at 332 (1986)).

Evans may file a Second Amended

Complaint that is complete in itself (that is, does not
incorporate any prior complaint by reference) no later than July
12, 2013.

He must also either pay the civil filing fee or submit

a new IFP.

Failure to meet the above deadline shall cause this

action to be automatically dismissed.

Given the court’s

dismissal of Evans’s Complaint, the court denies Evans’s IFP as
moot.
In addition, the court cautions Evans that any future
filing must comply with Rules 8 and 10 of the Federal Rules of
Civil Procedure.

Rule 8 requires “a short and plain statement of

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the claim showing that the pleader is entitled to relief.”
R. Civ. P. 8(a)(2).

Fed.

While Rule 8 does not require detailed

factual allegations, “it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.”
556 U.S. 662, 678 (2009).

Ashcroft v. Iqbal,

“[O]nly a complaint that states a

plausible claim for relief survives a motion to dismiss.”

Id.

To state a plausible claim, the complaint must, at a minimum,
“plead[] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

Rule 10(b) requires a plaintiff to state claims in
“numbered paragraphs, each limited as far as practicable to a
single set of circumstances.”

Fed. R. Civ. P. 10(b).

Moreover,

“[i]f doing so would promote clarity, each claim founded on a
separate transaction or occurrence . . . must be stated in a
separate count.”

Id.

The court notes that Evans’s First Amended Complaint
asserts intentional infliction of emotional distress, loss of
consortium, and loss of love.

However, Evans has not included

factual allegations going to the claims.
claims remain unclear.

The legal bases for his

Even construing Evans’s First Amended

Complaint liberally, Bernhardt v. Los Angeles County, 339 F.3d
920, 925 (9th Cir. 2003), the court cannot identify any plausible
ground for any of Evans’s claims.

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See Iqbal, 556 U.S. at 678

(“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 547 (2007)).

Any Second Amended

Complaint must cure these deficiencies by stating a claim upon
which relief may be granted.

Failure to do so will result in the

dismissal of the action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 26, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Evans v. Leapfrog, et al.; Civil No. 13-00269 SOM/BMK; ORDER
DISMISSING FIRST AMENDED COMPLAINT AND DENYING PLAINTIFF’S APPLICATION
TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT

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