Evans v. Town of Hampton, New Hampshire et al

Filing 15

ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT re 1 , 7 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/27/13. "Evans may file a First Amended Complaint that is complete in itself (that is, does not incorporate any prior complaint by reference) no later than July 15, 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." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive elec tronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Brian Evans shall be served by first class mail at the address of record on June 28, 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.
)
)
TOWN OF HAMPTON, NEW
)
HAMPSHIRE, ET AL.,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00315 SOM/KSC
ORDER DISMISSING COMPLAINT
AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED
WITHOUT PREPAYING FEES OR
COSTS AS MOOT

ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT
On June 25, 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. 7.

Because Evans fails to adequately

assert subject matter jurisdiction, this court dismisses Evans’s
Complaint and denies his 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 his citizenship, but he fails

to assert the citizenship of any of the defendants.

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 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 First Amended Complaint

that is complete in itself (that is, does not incorporate any
prior complaint by reference) no later than July 15, 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

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.”

2

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) of the Federal Rules of Civil Procedure
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 Complaint asserts

conspiracy to commit fraud and intentional infliction of
emotional distress.

However, Evans has not included factual

allegations going to the claims.
remain unclear.

The legal bases for his claims

Even construing Evans’s Complaint liberally, see

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

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 First Amended Complaint must cure

these deficiencies by stating a claim upon which relief may be

3

granted.

Failure to do so will result in the dismissal of the

action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 27, 2013.

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

Evans v. Town of Hampton, New Hampshire, et al.; Civil No. 13-00315
SOM/BMK; ORDER DISMISSING COMPLAINT AND DENYING PLAINTIFF’S
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS AS MOOT

4