Bennett v. Scouting America Aloha Council #104 et al

Filing 7

ORDER : DISMISSING PLAINTIFF'S COMPLAINT FOR A CIVIL CASE ALLEGING NEGLIGENCE WITH LEAVE TO AMEND; AND RESERVING RULING ON PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COTS re 1 , 4 - Signed by SE NIOR JUDGE LESLIE E. KOBAYASHI on 11/26/2024. On the basis of the foregoing, Plaintiff's Complaint for a Civil Case Alleging Negligence, filed September 20, 2024, is HEREBY DISMISSED. The dismissal is with leave to file an amended complaint that cures the defects identified in this Order. Plaintiff is GRANTED leave to file an amended complaint by January 27, 2025. The amended complaint must comply with the terms of this Order. Plaintiff is CAUTIO NED that, if he fails to file an amended complaint by January 27, 2025, the Complaint will be dismissed without leave to amend on January 28, 2025. In addition, the Court RESERVES RULING on Plaintiff& #039;s Application to Proceed in District Court Without Prepaying Fees or Costs, filed August 12, 2024. If Plaintiff chooses to file an amended complaint, and at least a portion of it survives the screening process, the merits of the Application wi ll be addressed. (eta)COURTS CERTIFICATE OF SERVICE - Nathan D. Brown has been served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on November 26, 2024.

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
NATHAN D. BENNETT,

CIV. NO. 24-00407 LEK-WRP

Plaintiff,
vs.
SCOUTING AMERICA ALOHA COUNCIL
#4, SCOUTING AMERICA,
Defendants.
ORDER: DISMISSING PLAINTIFF’S COMPLAINT FOR A
CIVIL CASE ALLEGING NEGLIGENCE WITH LEAVE TO AMEND;
AND RESERVING RULING ON PLAINTIFF’S APPLICATION TO
PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS
On September 20, 2024, pro se Plaintiff Nathan D.
Bennett (“Plaintiff”) filed the Complaint for a Civil Case
Alleging Negligence (“Complaint”) and an Application to Proceed
in District Court Without Prepaying Fees or Costs
(“Application”). [Dkt. nos. 1, 4.] For the reasons set forth
below, the Complaint is dismissed, and the Court will reserve
ruling on the Application. Plaintiff will be allowed to file an
amended complaint to try to cure the defects in the Complaint
that are identified in this Order, and the Court will rule on
the Application if any portion of the amended complaint survives
the screening process. Plaintiff’s amended complaint must be
filed by January 27, 2025.

STANDARD
“Federal courts can authorize the commencement of any
suit without prepayment of fees or security by a person who
submits an affidavit that demonstrates he is unable to pay.”
Smallwood v. Fed. Bureau of Investigation, CV. NO. 16-00505 DKWKJM, 2016 WL 4974948, at *1 (D. Hawai`i Sept. 16, 2016) (citing
28 U.S.C. § 1915(a)(1)).
The Court subjects each civil action
commenced pursuant to Section 1915(a) to
mandatory screening and can order the dismissal
of any claims it finds “frivolous, malicious,
failing to state a claim upon which relief may be
granted, or seeking monetary relief from a
defendant immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc) (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);[1] Calhoun v. Stahl, 254 F.3d 845, 845
(9th Cir. 2001) (per curiam) (holding that “the
provisions of 28 U.S.C. § 1915(e)(2)(B) are not
limited to prisoners”).
Id. at *3.
In addition, the following standards apply in the
screening analysis:
Plaintiff is appearing pro se; consequently,
the court liberally construes her pleadings.
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
Lopez has been overruled, in part, on other grounds by
Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc).
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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 to
dismissal of the action.” Lucas v. Dep’t of
Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also
Lopez v. Smith, 203 F.3d 1122, 1126 (9th. [sic]
Cir. 2000).
Despite the liberal pro se pleading
standard, the court may dismiss a complaint
pursuant to Federal Rule of Civil
Procedure 12(b)(6) 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.”); see also Baker v.
Dir., U.S. Parole Comm’n, 916 F.2d 725, 727 (D.C.
Cir. 1990) (holding that district court may
dismiss cases sua sponte pursuant to
Rule 12(b)(6) without notice where plaintiff
could not prevail on complaint as alleged). . . .
“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)). The assumption is
that the district court lacks jurisdiction. See
Kokkonen, 511 U.S. at 377. Accordingly, a “party
invoking the federal court’s jurisdiction has the
burden of proving the actual existence of subject
matter jurisdiction.” Thompson v. McCombe, 99
F.3d 352, 353 (9th Cir. 1996).
Flores v. Trump, CIVIL 16-00652 LEK-RLP, 2017 WL 125698, at *1
(D. Hawai`i Jan. 12, 2017) (some alterations in Flores) (some
citations omitted).

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DISCUSSION
I.

Jurisdiction
Federal courts are presumed to lack subject matter

jurisdiction, and the party asserting jurisdiction bears the
burden of establishing that subject matter jurisdiction is
proper. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). Even liberally construing Plaintiff’s
Complaint, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), it fails to allege facts to establish subject matter
jurisdiction.
Plaintiff alleges negligence, but the basis of his
negligence claim is unclear. See Complaint at pgs. 1, 4.
Plaintiff also attached multiple exhibits to his Complaint,
consisting of sixty-two pages. See dkt. nos. 1-1 to 1-15. It is
not apparent from these exhibits that Plaintiff is alleging any
claims apart from negligence. Thus, Plaintiff’s allegations
appear to raise claims only under state law. Plaintiff also
appears to allege the Court possesses diversity jurisdiction,
rather than jurisdiction based on a federal question. See
Complaint at pgs. 1, 3. Accordingly, the Court concludes that
Plaintiff has not established jurisdiction based on a federal
question. See 28 U.S.C. § 1331.
Plaintiff also fails to establish diversity
jurisdiction.
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Federal district courts have original
jurisdiction over cases where the amount in
controversy exceeds $75,000, exclusive of
interest and costs, and where the matter in
controversy is between citizens of different
states. 28 U.S.C. § 1332(a)(1). Complete
diversity of citizenship requires that each of
the plaintiffs be a citizen of a different state
than each of the defendants. Williams v. United
Airlines, Inc., 500 F.3d 1019, 1025 (9th Cir.
2007) (citing Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 553 (2005)); Morris
v. Princess Cruises, Inc., 236 F.3d 1061, 1067
(9th Cir. 2001).
Clark v. Trisler, CIVIL NO. 22-00559 JAO-KJM, 2023 WL 11884356,
at *1 (D. Hawai`i Jan. 10, 2023). An individual who is a citizen
of the United States is a citizen of her state of domicile,
meaning “her permanent home, where she resides with the
intention to remain or to which she intends to return.” Kanter
v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001)
(citation omitted). On the other hand, “a corporation is a
citizen only of (1) the state where its principal place of
business is located, and (2) the state in which it is
incorporated.” Johnson v. Columbia Props. Anchorage, LP, 437
F.3d 894, 899 (9th Cir. 2006) (citing 28 U.S.C. § 1332(c)(1)).
Here, Plaintiff alleges he is a citizen of Hawai`i.
[Complaint at pgs. 3.] Plaintiff also alleges both defendants
Scouting America Aloha Council #104 and Scouting America
(collectively “Defendants”) are corporations, and are
incorporated in Hawai`i with their principal place of business

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in Texas. [Id.] Accepting Plaintiff’s allegations as true, there
is not complete diversity of citizenship between the parties.
The allegation that Defendants are citizens of Hawai`i is fatal
to diversity jurisdiction. Thus, the Court concludes that
Plaintiff has not established jurisdiction based on diversity of
citizenship. See 28 U.S.C. § 1332(a)(1).
Therefore, the Court must dismiss the Complaint for
lack of jurisdiction. See In re Dynamic Random Access Memory
(DRAM) Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008)
(“Dismissal for lack of subject matter jurisdiction is
appropriate if the complaint, considered in its entirety, on its
face fails to allege facts sufficient to establish subject
matter jurisdiction.” (citation omitted)).
While the Court has doubts as to whether Plaintiff
will be able to amend the Complaint to sufficiently allege
subject matter jurisdiction, because it is arguably possible for
Plaintiff to do so, dismissal is with leave to amend. See Lucas,
66 F.3d at 248.
If Plaintiff should so choose, Plaintiff may attempt
to remedy the deficiencies in the Complaint by filing an amended
complaint. To do so, Plaintiff’s amended complaint must explain
the specific basis for the Court’s jurisdiction. Plaintiff
cannot incorporate any part of his original Complaint into the
amended complaint by referring to the original Complaint.
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Plaintiff may not expand his claims beyond those already alleged
herein, or add new claims, unless the new claims relate to the
claims alleged in the original Complaint. Claims that do not
properly relate to those in the Complaint are subject to
dismissal, even if the amended complaint pleads a sufficient
basis for jurisdiction.
Plaintiff is cautioned that, if he fails to file his
amended complaint by the deadline in this Order, or if the
amended complaint fails to cure the defects identified in this
Order, his claims will be dismissed with prejudice. Plaintiff
would then have no remaining claims in this case, and the
Clerk’s Office would be directed to close the case.
II.

Application
Insofar as the Complaint has been dismissed with leave

to amend, the Court declines to rule on the Application at this
time. The Court reserves ruling on the Application until
Plaintiff files an amended complaint. If any portion of
Plaintiff’s amended complaint survives the screening process,
the Court will then rule upon the Application and address
whether Plaintiff is entitled to proceed without prepaying fees
and costs.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Complaint
for a Civil Case Alleging Negligence, filed September 20, 2024,
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is HEREBY DISMISSED. The dismissal is with leave to file an
amended complaint that cures the defects identified in this
Order. Plaintiff is GRANTED leave to file an amended complaint
by January 27, 2025. The amended complaint must comply with the
terms of this Order. Plaintiff is CAUTIONED that, if he fails to
file an amended complaint by January 27, 2025, the Complaint
will be dismissed without leave to amend on January 28, 2025.
In addition, the Court RESERVES RULING on Plaintiff’s
Application to Proceed in District Court Without Prepaying Fees
or Costs, filed August 12, 2024. If Plaintiff chooses to file an
amended complaint, and at least a portion of it survives the
screening process, the merits of the Application will be
addressed.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 26, 2024.

NATHAN D. BENNETT V. SCOUTING AMERICA ALOHA COUNSEL #104 ET AL.,
CV 24-00407 LEK-WRP; ORDER: DISMISSING PLAINTIFF’S COMPLAINT FOR
A CIVIL CASE ALLEGING NEGLIGENCE WITH LEAVE TO AMEND; AND
RESERVING RULING ON PLAINTIFF’S APPLICATION TO PROCEED IN
DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS

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