Evans v. Leap Frog Group et al

Filing 32

ORDER DISMISSING SECOND AMENDED COMPLAINT; ORDER DENYING AS MOOT PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEE OR COSTS; AND ORDER DENYING PLAINTIFF'S MOTION FOR CLARIFICATION re 16 , 17 , 22 - Signed by CHIEF JUDGE SUS AN OKI MOLLWAY on 9/30/13. "Evans may file a Third Amended Complaint that is complete in itself (that is, does not incorporate any prior complaint by reference) no later than October 30, 2013. He must also either pay the civil fil ing fee or submit a new IFP. Failure to meet the above deadline shall cause this action to be automatically dismissed." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifica tions 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 September 30, 2013. A copy of the court's application to proceed in forma pauperis shall be included in the mailing to Mr. Evans.

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

)
)
Plaintiff,
)
)
vs.
)
)
THE LEAPFROG GROUP, et al,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 13-00269 SOM/BMK
ORDER DISMISSING SECOND
AMENDED COMPLAINT; ORDER
DENYING AS MOOT PLAINTIFF’S
APPLICATION TO PROCEED
WITHOUT PREPAYING FEE OR
COSTS; AND ORDER DENYING
PLAINTIFF’S MOTION FOR
CLARIFICATION

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

See ECF No. 1.

That same day, Evans

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

On May 31, 2013, this court dismissed the Complaint

and denied as moot the motion to proceed without prepayment of
fees because Evans failed to allege facts sufficient to establish
the court’s subject matter jurisdiction.

See ECF No. 5.

Evans

filed his First Amended Complaint and a second IFP on June 18,
2013.

See ECF Nos. 8 and 9.

Evans again failed to adequately

allege facts sufficient to establish subject matter jurisdiction
and this court dismissed Evans’s First Amended Complaint and

denied his second IFP as moot.

See ECF No. 10.

Evans then filed

his Second Amended Complaint and third IFP on July 1, 2013.
ECF Nos. 16 and 17.

See

Because Evans again fails to adequately

allege facts demonstrating that this court has subject matter
jurisdiction, Evans’s Second Amended Complaint is dismissed and
his third IFP is denied 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.

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 alleges that he is a citizen of Hawaii, but he fails to
identify the citizenship of Defendants The Leapfrog Group and The
Robert Wood Johnson Foundation.

See id. (noting that § 1332

“speaks of citizenship, not of residency”).
Evans alleges that Defendant The Leapfrog Group is
located and does business in Washington, D.C., but does not
allege facts demonstrating its citizenship.

See ECF No. 17. If

The Leapfrog Group is a corporation, then it would be a citizen
of the state in which it was incorporated in, and of the state
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where it has its principal place of business.
1332(c)(1).

See 28 U.S.C. §

Without appropriate factual allegations, The

Leapfrog Group’s citizenship cannot be established.
Evans also asserts that Defendant The Robert Wood
Johnson Foundation is located and does business in New Jersey,
but again fails to allege facts that establish its citizenship.
See ECF No. 17.

Without appropriate factual allegations, The

Robert Wood Johnson Foundation’s citizenship cannot be
established.
Evans’s failure to allege the citizenship of every
Defendant as opposed to the location and residency is a
deficiency that precludes the court from ascertaining whether
diversity jurisdiction exists.

See Kanter v. Warner-Lambert Co.,

265 F. 3d 853,857 (9th Cir. 2001) (stating that a person residing
in a given state is not necessarily a citizen of that state).
Accordingly, the court must dismiss Evans’s Second Amended
Complaint.

See Morongo Band of Mission Indians v. Cal. State Bd.

of Equalization, 858 F.2d 1367, 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)).
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Evans may file a Third Amended Complaint that is
complete in itself (that is, does not incorporate any prior
complaint by reference) no later than October 30, 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

Second Amended Complaint, the court denies Evans’s IFP as moot.
The court further notes that, on July 7, 2013, Evans
filed a Motion for Clarification.

See ECF No. 22.

This motion

merely asks whether the Second Amended Complaint was accepted for
filing, which it was, and whether his Application was ruled upon.
Because the present order adjudicates his Application, the Motion
for Clarification of July 7, 2013, is moot.

It is therefore

denied.
IT IS SO ORDERED.

DATED: Honolulu, Hawaii, September 30, 2013.

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

Evans v. The Leap Frog Group, et al.; Civil No. CV 13-00269
SOM/BMK; ORDER DISMISSING SECOND AMENDED COMPLAINT; ORDER DENYING
AS MOOT PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEE
OR COSTS AND ORDER DENYING AS MOOT PLAINTIFF’S MOTION FOR
CLARIFICATION

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