Hemmy et al v. A-1 Auto Sales

Filing 6

ORDER DENYING 3 EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER, DISMISSING COMPLAINT AND DENYING AS MOOT PLAINTIFFS'APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS. Signed by JUDGE DERRICK K. WATSON on 10/20/2015. ~ P laintiffs' Ex Parte Motion for TRO is DENIED, the Complaint is DISMISSED with limited leave to amend, and the Application is DENIED as moot. Plaintiffs are granted to leave to file an amended complaint no later than November 13, 2015. The Cour t cautions Plaintiffs that failure to file an amended complaint, along with the required filing fee or a fully executed application to proceed without prepayment of fees by November 13, 2015, will result in the automatic dismissal of this acti on. (ecs, )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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

MINA ELIZABETH HEMMY
JOINTLY WITH MARK ANTHONY
DIAZ AS EXECUTOR(S) AND
BENEFICIARY OF A
CONSTRUCTIVE TRUST,

CR NO. 15-00432 DKW RLP

ORDER DENYING EX PARTE
MOTION FOR TEMPORARY
RESTRAINING ORDER,
DISMISSING COMPLAINT AND
DENYING AS MOOT PLAINTIFFS’
APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF
FEES OR COSTS

Plaintiffs,
vs.
A-1 AUTO SALES, A-1
ACCEPTANCE CORPORATION
CONSISTING OF CALVIN COHEN
AS THE TRUSTEE,
Defendant.

ORDER DENYING EX PARTE MOTION FOR TEMPORARY
RESTRAINING ORDER, DISMISSING COMPLAINT AND
DENYING AS MOOT PLAINTIFFS’ APPLICATION
TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS

INTRODUCTION
On October 19, 2015, Plaintiffs pro se Mina Elizabeth Hemmy and Mark
Anthony Diaz filed a Complaint, Ex Parte Motion for Temporary Restraining Order

1

(“TRO”) and Application to Proceed in District Court Without Prepaying Fees or
Costs (“Application”). The Complaint seeks an affirmative injunction compelling
Defendant A-1 Auto Sales and/or A-1 Acceptance Company to transfer an
automobile title to Plaintiffs based on Plaintiffs’ assertion that they have fully
satisfied the balance owing on the 2011 Nissan Leaf. Plaintiffs’ Ex Parte Motion
for a TRO is DENIED because they have made no showing of either a likelihood of
success on the merits or irreparable harm. Further, because the basis of this Court’s
jurisdiction is not entirely clear, the Court DISMISSES the Complaint with limited
leave to amend and DENIES the Application as moot.
DISCUSSION
Plaintiffs are proceeding pro se, and, therefore, the Court liberally construes
their pleadings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The
Supreme Court has instructed the federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam)). Upon review of the Ex Parte Motion for TRO, the Court
concludes that Plaintiffs are not entitled to the relief they seek without notice to
Defendants because they have not demonstrated any irreparable injury or likelihood
of success on the merits. Further, the Complaint and documents attached thereto do
not establish that this Court has jurisdiction over this matter, as discussed below.
2

I.

Plaintiffs’ Ex Parte Motion for TRO Is Denied
Although difficult to decipher, it appears that Plaintiffs seek a court order

directing Defendant to transfer title to a 2011 Nissan Leaf and to provide Plaintiffs
“with notice the account has been zeroed out.” Complaint ¶ 7.
A court may issue a TRO without written or oral notice to the adverse party
only if the party requesting the relief provides an affidavit or verified complaint
providing specific facts that “clearly show that immediate and irreparable injury,
loss, or damage will result to the movant before the adverse party can be heard in
opposition.” Fed.R.Civ.P. 65(b)(1)(A). Plaintiffs fall far short of meeting this
burden. They have not provided any specific facts establishing that immediate and
irreparable injury, loss, or damage will result to anyone. Here, neither the TRO nor
the Complaint establish any likelihood of irreparable injury. Plaintiffs also failed to
certify in writing any efforts made to give notice to Defendants or the reasons why
notice should not be required before a TRO is considered or issued. See
Fed.R.Civ.P. 65(b)(1)(B). Nor have Plaintiffs made any effort to demonstrate that
notice is impossible or fruitless, as required for an ex parte TRO. Reno Air Racing
Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006) (finding that a TRO was
improperly issued because notice to the adverse party was neither impossible nor
would it render the action fruitless).
3

Moreover, even if Defendants did have notice of the TRO, Plaintiffs fail to
meet their substantive burden to justify the extraordinary remedy they seek. The
standard for issuing a temporary restraining order is identical to the standard for
issuing a preliminary injunction. See, e.g., Hawaii v. Gannett Pac. Corp., 99 F.
Supp. 2d 1241, 1247 (D. Haw. 1999). A “plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public interest.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008) (citation omitted). “That is, ‘serious
questions going to the merits’ and a balance of hardships that tips sharply towards
the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff
also shows that there is a likelihood of irreparable injury and that the injunction is in
the public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th
Cir. 2011). Winter emphasized that plaintiffs seeking preliminary relief must
demonstrate that “irreparable injury is likely in the absence of an injunction.” 555
U.S. at 22; see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).
Plaintiffs do not meet that burden here. Their Ex Parte Motion for TRO
states in full:

4

1.

Pursuant to Fed.R.Civ.P. 65 and LCvR 65.1, Plaintiff hereby
moves the Court to issue a Temporary Restraining Order and
Preliminary Injunction requiring Defendant or its agents to cease
and desist the following non-speculative imminent actions; all
attempts to contact the plaintiff, any attempts of grand larceny on
trust assets currently owned by the beneficiaries/plaintiff as this
would cause irreparable injury to the plaintiff.

2.

In support of this motion, plaintiff relies on evidence provided in
exhibit B which adequately asserts my right to the trustee to
cease and desist all contact unless by signed letter, yet the
plaintiffs/beneficiaries has been unlawfully harassed and
threatened by the defendant. (Exhibit C last paragraph pg 2).

The exhibits referenced in the TRO and attached to the Complaint do not
demonstrate any irreparable harm or injury to Plaintiffs or further detail the
“harass[ment]” noted in the TRO. To the contrary, Exhibit B appears to be a letter,
dated September 9, 2015, sent by Hemmy to Defendants with the subject line,
“conditional acceptance and request for statement regarding accounting.” The
letter states:
I am in receipt of your statement dated 8/31/2015 and we
conditionally accept your bill for $18,124.97 upon or receipt of a
verified claim to my office signed by an authorized
representative from you [sic] Company submitted with the
following proof for consideration:
A.

Proof. I agree to pay your claim of 18,124.27 upon
proof that the account/stock # 212233 is not
satisfied and paid in full and reflecting a zero
balance due. (SEE MONEY ORDER
ENCLOSURE) To validate your claim you are
5

required within 10 days of receipt to correct the
following statements as being untrue; or agree,
consent, and assent to the statements as fact, by
remaining silent.
STATEMENT OF FACTS
(1)

On August 31st, 2015 we received an offer for a
pay-off price of $18,194.27 by Calvin Cohen on
behalf of A-1 Auto Sales

(2)

Payment was received by A-1 Auto Sales via my
Pre-paid Trust Account. See PS Form 3811
Domestic Return Receipt from Mina E. Hemmy
[exhibit A]

(3)

There exists no evidence or certification of dishonor
to the tender and therefore the facts establish that
the final credit to the account is made and the final
adjustment is brought to Zero.

(4)

The account balance for the total sum of $18,194.27
is now paid in full.
(a)

1.

Verification. Your claim must be verified to
prove the validity, by presenting the alleged
obligation under oath of notary seal and
signed by an officer of A-1 Auto Sales, under
penalty of perjury as to accord with
impartiality honesty of integrity. [sic]

This is an unrebutted statement of facts, your
response is not required, however if you fail to rebut
these statements within 14 days then it shall certify
your consent, assent and agreement to the
statements as true, correct, complete and not
misleading.
6

2.

Additionally all further communication to our
office shall be made only by an Officer of A-1 Auto
Sales, signed in ink, including the title and name of
the individual verifying the data and affirming its
accuracy and authenticity. Please cease and desist
all communications that are not signed in
accordance with provision made herewith. That
failure to do so constitutes a prejudice to my rights
and is damaging to me.

Complaint, Ex. B (9/9/2015 Letter). Although it is far from clear, Exhibit C
appears to be a print-out of cellular telephone records for either incoming or
outgoing calls to various telephone numbers. There is no indication to whom these
records relate, the source or identities of the incoming or outgoing calls, or the
significance of the filters applied to retrieve these results. In short, nothing in the
TRO demonstrates any past or imminent future injury to Plaintiffs caused by
Defendants. Indeed, nothing Plaintiffs have submitted so much as shows any
conduct by Defendants beyond apparently preparing and sending a single monthly
statement to Plaintiffs relating to the 2011 Nissan Leaf in August 2015.
Plaintiffs have not established that they are likely to succeed on the merits
because their claims are both unclear and unsupported, and, as discussed below, the
Court is without evident subject matter jurisdiction over this action. Plaintiffs’
vague allegations present no serious question that they are in danger of irreparable

7

injury, that the balance of equities tips in their favor, or that an injunction is in the
public interest. Alliance for Wild Rockies, 632 F.3d at 1135. Accordingly,
Plaintiffs’ Ex Parte Motion for TRO is DENIED.
II.

The Court Lacks Subject Matter Jurisdiction
Pursuant to 28 U.S.C. § 1915(e), the Court subjects every in forma pauperis

proceeding to mandatory screening and orders the dismissal of the case if it is
“frivolous or malicious,” “fails to state a claim on which relief may be granted,” or
“seeks monetary relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (2000) (stating that
28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss
an in forma pauperis complaint that fails to state a claim).
A.

Standard of Review

As noted previously, Plaintiffs are proceeding pro se, and, therefore, the Court
liberally construes their pleadings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th
Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally
construe the ‘inartful pleading’ of pro se litigants.”) (citing Boag v. MacDougall,
454 U.S. 364, 365 (1982) (per curiam)). The Court also recognizes that “[u]nless it
is absolutely clear that no amendment can cure the defect . . . a pro se litigant is
entitled to notice of the complaint’s deficiencies and an opportunity to amend prior
8

to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir.
1995). Nevertheless, the Court may dismiss a complaint on its own motion. See
Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may
dismiss a claim sua sponte under [Rule] 12(b)(6). Such a dismissal may be made
without notice where the claimant cannot possibly win relief.”); Ricotta v. Cal., 4 F.
Supp. 2d 961, 968 n.7 (S.D. Cal. 1998) (“The Court can dismiss a claim sua sponte
for a Defendant who has not filed a motion to dismiss under Fed. R. Civ. P.
12(b)(6).”).
A plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This
tenet—that the court must accept as true all of the allegations contained in the
complaint—“is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at
555). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In other
9

words, “the factual allegations that are taken as true must plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652
F.3d 1202, 1216 (9th Cir. 2011). Factual allegations that only permit the court to
infer “the mere possibility of misconduct” do not show that the pleader is entitled to
relief as required by Rule 8. Iqbal, 556 U.S. at 679.
Claims may also be dismissed sua sponte where the Court does not have
federal subject matter jurisdiction. Franklin v. Murphy, 745 F.2d 1221, 1227 n.6
(9th Cir. 1984); see also Fed. R. Civ. P. 12(h)(3); Grupo Dataflux v. Atlas Global
Grp., L.P., 541 U.S. 567, 593 (2004) (“[I]t is the obligation of both the district court
and counsel to be alert to jurisdictional requirements.”). “A party invoking the
federal court’s jurisdiction has the burden of proving the actual existence of subject
matter jurisdiction.” See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996).
B.

Federal Question Jurisdiction Is Lacking

“Federal courts are courts of limited jurisdiction,” possessing “only that
power authorized by Constitution and statute.” United States v. Marks, 530 F.3d
799, 810 (9th Cir. 2008) (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994)). At the pleading stage, a plaintiff must allege sufficient facts to show a
proper basis for the Court to assert subject matter jurisdiction over the action.
10

McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Johnson v.
Columbia Props. Anchorage, L.P., 437 F.3d 894, 899 (9th Cir. 2006); Fed. R. Civ. P.
8(a)(1).
In general, a plaintiff may establish subject matter jurisdiction in one of two
ways. First, he may assert “federal question jurisdiction,” based on allegations that
a defendant violated the Constitution, a federal law, or treaty of the United States.
See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”). The
United States Supreme Court has recognized that a “plaintiff properly invokes
§ 1331 jurisdiction” by pleading “a colorable claim ‘arising’ under the Constitution
or laws of the United States.” Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006).
Second, a plaintiff may invoke the court’s “diversity jurisdiction,” which applies
“where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between . . . citizens of different States.” 28 U.S.C.
§ 1332(a)(1). In order to establish diversity jurisdiction, a plaintiff must establish
complete diversity of the parties. See Morris v. Princess Cruises, Inc., 236 F.3d
1061, 1067 (9th Cir. 2001) (explaining that § 1332(a) “requires complete diversity
of citizenship; each of the plaintiffs must be a citizen of a different state than each of
the defendants”).
11

Plaintiffs assert only federal question jurisdiction, alleging that this “suit is
under the federally enacted Uniform Commercial Code (UCC), Uniform Trust Code
(UTC), Article 1 of the U.S. Constitution, U.S.C. 31 § 5118(c). Because of this
standing there is ‘federal question’ in constructive trust and commerce.”
Complaint ¶ 1. Plaintiffs also state that they bring “this action under [UCC] Article
3 and Article 9-210 declaring that discharge of a bank debt has been made with
lawful U.S. Tender in accordance with UCC 3-104, Article 1, Section 10, Clause 1
of the U.S. Constitution, U.S.C. Title 31 § 5118(c)(3) for the balance of an
automobile loan issued in commerce by the trustee (defendant).” Complaint ¶ 4.
“Additionally, the defendant has violated the plaintiffs rights under the Fair Debt
Collection Practices Act (FDCPA) § 805(c) and HRS § 443B-1 through 20 and
480-D, as the plaintiff has advised the defendant in writing via a ‘conditional
acceptance’ (Exhibit B), to cease and desist contact the plaintiff unless through a
signed letter[.]” Complaint ¶ 5. These legal conclusions, however, do not
establish claims that arise under federal law so as to create federal question
jurisdiction.
First, all claims relating to the Uniform Commercial Code arise under state
rather than federal law, and, therefore, do not provide a court with federal question
jurisdiction. See, e.g., Motorola, Inc. v. Perry, 917 F. Supp. 43, 48 n.5 (D.D.C.
12

1996); Chase Home Finance, LLC v. Mungaro, 2005 WL 3334451, * 1-2 (N.D. Ga.
Dec.8, 2005) (finding no federal question jurisdiction where defendant claimed
there was federal question jurisdiction on the basis of the UCC); Whitus v.
Countrywide Mortg., Inc., 2004 WL 2165362, *3 (D. Or. Sept. 24, 2004) (finding
reference to the UCC is insufficient to raise a federal question). Likewise, any
claim for violation of the Uniform Trust Code would be a matter of state law.1 See
National Conference of Commissioners of Uniform State Laws, Uniform Trust
Code (Last Revised or Amended in 2010), available online at
www.uniformlaws.org/shared/docs/trust_code/utc_final_rev2010.pdf.
Second, Plaintiffs’ specific references to the United States Constitution and
various federal statutes are not sufficient to create federal question jurisdiction as
alleged here. A federal court must dismiss for lack of jurisdiction if the federal
claim that is the basis for jurisdiction is obviously without merit or is wholly
frivolous. The test is whether the cause of action alleged is “so patently without
merit as to justify the court’s dismissal for want of jurisdiction.” Duke Power Co.
v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 70 (1978). Although
1

The Court notes that Hawai‘i has not adopted the Uniform Trust Code as of the date of this Order.
See National Conference of Commissioners of Uniform State Laws, Uniform Trust Code
Legislative Fact Sheet--Enactments, available online at
http://uniformlaws.org/LegislativeFactSheet.aspx?title=Trust%20Code; see also Haw. Rev. Stat.
Ch. 560 (Uniform Probate Code); HRS §§ 560:1-201 & 7-201 (establishing jurisdiction of state
circuit court to serve as probate court).

13

Plaintiffs reference Article 1 of the United States Constitution, that provision does
not provide a private cause of action under the circumstances alleged here.2 See
Avila v. Pappas, 591 F.3d 552, 553 (7th Cir. 2010) (“It is not enough to utter the
word ‘Constitution’ and then present a claim that rests on state law. If it were,
every claim that a state employee committed a tort, or broke a contract, could be
litigated in federal court. It is therefore essential that the federal claim have some
substance—that it be more than a pretext to evade the rule that citizens of a single
state must litigate their state-law disputes in state court.”). Plaintiffs’ invocation of
31 U.S.C. § 3118(c)3 also fails to confer subject matter jurisdiction pursuant to 28

2

Article 1 of the United States Constitution addresses the limits of Congressional authority and
therefore has no evident bearing on the claims made here.
3
This statute relating to coins and currency does not create a private cause of action under the
circumstances alleged here. The statutory provision cited by Plaintiffs, entitled “Gold clauses and
consent to sue” reads:
(c)(1) The Government withdraws its consent given to anyone to assert
against the Government, its agencies, or its officers, employees, or agents, a
claim-(A) on a gold clause public debt obligation or interest on the
obligation;
(B) for United States coins or currency; or
(C) arising out of the surrender, requisition, seizure, or acquisition
of United States coins or currency, gold, or silver involving the
effect or validity of a change in the metallic content of the dollar or
in a regulation about the value of money.
(2) Paragraph (1) of this subsection does not apply to a proceeding in which
no claim is made for payment or credit in an amount greater than the face or
nominal value in dollars of public debt obligations or United States coins or
currency involved in the proceeding.

14

U.S.C. § 1331.
Finally, Plaintiffs’ bare allegation without factual enhancement that “the
defendant violated the plaintiffs rights under the Fair Debt Collection Practices Act
(FDCPA) § 805(c),” fails to state a claim as currently alleged.4 Complaint ¶ 5. In
order to state a claim under the FDCPA, Plaintiffs must allege that Defendants
qualify as “debt collectors” within the meaning of the statute. The FDCPA
generally prohibits “debt collectors” from making false or misleading

(3) Except when consent is not withdrawn under this subsection, an amount
appropriated for payment on public debt obligations and for United States
coins and currency may be expended only dollar for dollar.
31 U.S.C. § 5118(c).
4

Under this section of the FDCPA, if a consumer notifies a debt collector in writing that the
consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further
communication with the consumer, the debt collector shall not communicate further with the
consumer with respect to such debt, except -(1) to advise the consumer that the debt collector’s further efforts
are being terminated;
(2) to notify the consumer that the debt collector or creditor may
invoke specified remedies which are ordinarily invoked by such
debt collector or creditor; or
(3) where applicable, to notify the consumer that the debt collector
or creditor intends to invoke a specified remedy.
If such notice from the consumer is made by mail, notification shall be
complete upon receipt.
15 U.S.C. § 1692c.

15

representations and from engaging in various abusive and unfair practices in
collecting debts. See, e.g., Heintz v. Jenkins, 514 U.S. 291, 292 (1995). The
FDCPA defines a “debt collector” as “any person who uses any instrumentality of
interstate commerce or the mails in any business the principal purpose of which is
the collection of any debts, or who regularly collects or attempts to collect, directly
or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C.
§ 1692a(6) (emphasis added). There is no allegation that Defendants have
attempted to collect the debts of “another.” To the contrary, Plaintiffs maintain that
the debt they once owed to Defendants has been discharged. Complaint ¶ 4; cf.
Lyons v. Bank of Am., NA, 2011 WL 3607608, at *12 (N.D. Cal. Aug. 15, 2011)
(“The FDCPA applies to those who collect debts on behalf of another; it does not
encompass creditors who are collecting their own past due accounts.”). Plaintiffs’
allegations are inconsistent with the statutory definition of “debt collector,” and
accordingly, fail to state a claim for violation of the FDCPA. Plaintiffs do not
allege sufficient factual matter, accepted as true, to state a claim under the FDCPA
that is plausible on its face. Iqbal, 556 U.S. at 678. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). At present, Plaintiffs fail to state a claim under the
16

FDCPA, and the Court remains without federal question subject matter jurisdiction.
Because amendment of the FDCPA may be possible, Plaintiffs are GRANTED
leave to amend only their FDCPA claim, as explained in further detail below.
Despite Plaintiffs’ attempt to create federal question jurisdiction by listing
various Constitutional and statutory provisions, none of the enumerated laws
provide a legitimate basis for this Court to hear this case. With the exception of
their FDCPA claim, Plaintiffs’ allegations sounding in tort, breach of contract,
breach of fiduciary duty, breach of trust, unfair and deceptive acts or practices and
relating to the Uniform Commercial Code are state law claims that may be
appropriately brought in Hawai‘i state courts. These claims may not, however, be
brought in federal court, absent a clearly pled basis for federal jurisdiction. See
Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) (“A party invoking the
federal court’s jurisdiction has the burden of proving the actual existence of subject
matter jurisdiction.”). Accordingly, the Court is without the authority to adjudicate
these claims, and the Complaint is DISMISSED.
As result of the Court’s dismissal of the Complaint for lack of subject matter
jurisdiction, Plaintiffs’ Application to Proceed In District Court Without Prepaying
Fees or Costs is DENIED as moot.

17

III.

Leave to Amend
The Court is mindful that “[u]nless it is absolutely clear that no amendment

can cure the defect . . . a pro se litigant is entitled to notice of the complaint’s
deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v.
Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). As discussed above, as currently
alleged in the Complaint, Plaintiffs fail to state a claim for violation of the FDCPA.
Because amendment may be possible, the Court GRANTS leave to file an amended
complaint, consistent with the terms of this Order, by November 13, 2015. This
Order limits Plaintiffs to the filing of an amended complaint that attempts to cure the
specific deficiencies identified in this Order. New or different theories, causes of
action, or additional parties are not permitted.
If Plaintiffs choose to file an amended complaint, they are CAUTIONED that
they must clearly identify the basis for this Court’s subject matter jurisdiction.
Plaintiffs should also clearly allege the following: (1) the constitutional or statutory
right Plaintiffs believe was violated; (2) the name of the defendant who violated that
right; (3) exactly what that defendant did or failed to do; (4) how the action or
inaction of that defendant is connected to the violation of Plaintiffs’ rights; and (5)
what specific injury Plaintiffs suffered because of that defendant’s conduct. See
Rizzo v. Goode, 423 U.S. 362, 371-72 (1976). Plaintiffs must repeat this process for
18

each person or entity named as a defendant. If Plaintiffs fail to affirmatively link
the conduct of each named defendant with the specific injury suffered, the allegation
against that defendant will be dismissed for failure to state a claim.
Plaintiffs are CAUTIONED that if they elect to file an amended complaint,
they must pay the statutory filing fee or submit a fully executed application to
proceed without prepayment of fees or costs.
CONCLUSION
Based upon the foregoing, Plaintiffs’ Ex Parte Motion for TRO is DENIED,
the Complaint is DISMISSED with limited leave to amend, and the Application is
DENIED as moot. Plaintiffs are granted to leave to file an amended complaint no
later than November 13, 2015. The Court cautions Plaintiffs that failure to file an
amended complaint, along with the required filing fee or a fully executed application
//

//

//

//

//

//

19

to proceed without prepayment of fees by November 13, 2015, will result in the
automatic dismissal of this action.
IT IS SO ORDERED.
DATED: October 20, 2015 at Honolulu, Hawai’i.

Mina Hemmy, et al. v. A-1 Auto Sales ; CV 15-00432 DKW-RLP;
ORDER DENYING EX PARTE MOTION FOR TEMPORARY
RESTRAINING ORDER, DISMISSING COMPLAINT AND DENYING AS
MOOT PLAINTIFFS’ APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS

20