Benjamin et al v. JP Morgan Chase Bank et al
DEFICIENCY ORDER. Signed by JUDGE DERRICK K. WATSON on 12/28/2016. 1. The Clerk of Court is DIRECTED to send Plaintiffs a copy of this Order and the Court's Application to Proceed in forma pauperis with the accompanying in formation sheet. 2. Plaintiffs are GRANTED until January 27, 2017 to (a) pay the balance of the court's $400 filing fee; (b) file a Notice of Withdrawal of this action and obtain reimbursement of the $58 they have already paid to the Clerk's Office; or (c) submit a completed and executed application to proceed in forma pauperis on the form provided by the court with this Order. The application must bear the docket number (that is, Civil No. 16-00675 D KW-KJM) assigned to this case. 3. Failure to timely file an in forma pauperis application, file a Notice of Withdrawal, or pay the balance of the statutory filing fee ($400 - $58 = $342) by January 27, 2017 will re sult in AUTOMATIC DISMISSAL of this action (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 (as directed the order and forms as directed. [Note: No instructions available for Application.] by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
ESTELITO BENJAMIN JR. AND
KIMBERLY JO OF THE HOUSE OF
CASTILLON, INDIVIDUALLY AND
ON BEHALF OF THE HEIRS OF
THE HOUSE OF CASTILLON AND
CIV. NO. 16-00675 DKW-KJM
[formerly MC 16-000359 DKW-KJM]
JPMORGAN CHASE BANK, et al.,
Plaintiffs Estelito Benjamin Jr. and Kimberly Jo of the House of Castillon,
proceeding pro se, filed a new action entitled in part, “Judicial Notice/Admissions:
Affidavit and Complaint/Writ of Assistance and Expedition/Writ of Safe Passage”
on December 19, 2016. Because the “Judicial Notice/Admissions” pleading is not
part of an ongoing case, it was filed as a miscellaneous case, and Plaintiffs paid a
$58 filing fee. The court has converted the miscellaneous case to a civil case. The
new case number is Civil No. 16-00675 DKW-KJM. All future filings shall reflect
the new case number.
All parties instituting any civil action, suit or proceeding in a United States
district court, other than a writ of habeas corpus, must pay a filing fee of $400.00.
See 28 U.S.C. § 1914(a). Due to the prior payment of a $58 miscellaneous filing
fee, Plaintiffs’ balance due for the civil filing fee is $342.
Plaintiffs have until January 27, 2017 to submit the balance due or an
application to proceed in forma pauperis (“IFP”). An action may only proceed
without prepayment of the filing fee if a party is granted leave to proceed IFP. 28
U.S.C. § 1915(a); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
Plaintiffs must either pay the statutory filing fee or submit a fully-completed
and executed IFP application by January 27, 2017. Failure to do so will result in
AUTOMATIC DISMISSAL of this action for failure to prosecute or otherwise
follow a court order. See Fed. R. Civ. P. 41(b); Olivares v. Marshall, 59 F.3d 109,
112 (9th Cir. 1995) (stating that the district court has authority to dismiss the
complaint for failure to pay partial filing fee); In re Perroton, 958 F.2d 889, 890
(9th Cir. 1992) (affirming dismissal of appeal of pro se litigant for failure to pay
required filing fees). Alternatively, Plaintiffs may file a Notice of Withdrawal of
this action and obtain reimbursement of the $58 from the Clerk’s Office, which
will terminate this action.
In determining whether to proceed in this action, Plaintiffs should take heed
that the “Judicial Notice/Admissions” filing is deficient on its face for several
reasons, which they may not be able to overcome. If Plaintiffs choose to proceed
in this action, they must provide a basis for the court’s subject matter jurisdiction.
See, e.g., 28 U.S.C. §§ 1331 (federal question), 1332 (diversity of citizenship).
Further, even if Plaintiffs establish the court’s jurisdiction, they do not
appear to be asserting any cognizable claim for which this court could provide
relief against the named defendants. 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.”). Private individuals have no authority to call for a
grand jury investigation or criminal indictment for violation of the federal criminal
statutes listed in Plaintiffs’ pleading, nor does the court have jurisdiction to hear
allegations of criminal conduct that are brought by anyone other than the United
States. See, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974) (noting that the
executive branch has exclusive authority to decide whether to prosecute a case).
IT IS HEREBY ORDERED that:
The Clerk of Court is DIRECTED to send Plaintiffs a copy of this
Order and the Court’s Application to Proceed in forma pauperis with
the accompanying information sheet.
Plaintiffs are GRANTED until January 27, 2017 to (a) pay the
balance of the court’s $400 filing fee; (b) file a Notice of Withdrawal
of this action and obtain reimbursement of the $58 they have already
paid to the Clerk’s Office; or (c) submit a completed and executed
application to proceed in forma pauperis on the form provided by the
court with this Order. The application must bear the docket number
(that is, Civil No. 16-00675 DKW-KJM) assigned to this case.
Failure to timely file an in forma pauperis application, file a Notice of
Withdrawal, or pay the balance of the statutory filing fee ($400 - $58
= $342) by January 27, 2017 will result in AUTOMATIC
DISMISSAL of this action.
IT IS SO ORDERED.
DATED: December 28, 2016 at Honolulu, Hawaii.
Castillon v. JPMorgan Chase Bank et al., CV. 16-00675 DKW-KJM;
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