Von Greenbrier v. Greenbrier, Greenbrier IA

Filing 4

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Erriche Anton Von Greenbrier; Order Setting: ( Amended Pleadings due by 5/23/2012.) Signed by Jeremiah C. Lynch on 4/23/2012. (Attachments: # 1 Supplement) (TCL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
ERRICHE ANTON VON GREENBRIER,

CV 12-53-M-DLC-JCL

Plaintiff,
vs.

ORDER

GREENBRIER, and GREENBRIER IA,
Defendants.
_____________________________________________
I. INTRODUCTION
Plaintiff Erriche Anton Von Greenbrier is proceeding pro se in this action,
and he filed a motion to proceed in forma pauperis. Plaintiff submitted a
declaration that makes the showing required by 28 U.S.C. § 1915(a). Because it
appears Plaintiff lacks sufficient funds to prosecute this action IT IS HEREBY
ORDERED that his motion is GRANTED. This action may proceed without
prepayment of the filing fee, and the Clerk of Court is directed to file Plaintiff’s
lodged Complaint as of the filing date of his motion to proceed in forma pauperis.
The federal statute under which leave to proceed in forma pauperis is
permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
screening of the allegations set forth in the litigant’s pleading. The applicable
provisions of section 1915(e)(2) state as follows:
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(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
The Court will review Plaintiff’s pleading to consider whether this action
can survive dismissal under the provisions of section 1915(e)(2), or any other
provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9th
Cir. 2005).
II. PLAINTIFF’S ALLEGATIONS
Plaintiff commenced this action by filing a complaint setting forth
extremely vague allegations. Based on the limited information provided by
Plaintiff, it appears that Defendants may have filed a lawsuit against Plaintiff in
the State of Virginia asserting Plaintiff is liable for infringing upon Defendants’
trademark rights. Plaintiff states he wants to “counter sue” Defendants, and that
he wants the issues resolved in the courts in Montana, not in Virginia. Plaintiff

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has not provided any further background information describing the underlying
circumstances of his case, nor has he identified any legal claim he may seek to
assert against Defendants.
III. DISCUSSION
Because Plaintiff is proceeding pro se the Court must construe his pleading
liberally, and the pleading is held "to less stringent standards than formal
pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). See
also Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Although the Court has
authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly
be cured by the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)).
A. Jurisdiction
In addition to the grounds for dismissal set forth in 28 U.S.C. § 1915(e)(2)
above, to avoid dismissal Plaintiff’s Complaint must set forth sufficient allegations
to invoke the jurisdiction of this Court. Fed. R. Civ. P. 8(a)(1).1
Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute[.]... It is to be presumed that a
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Pro se litigants are “bound by the rules of procedure.” Ghazali v. Moran, 46
F.3d 52, 54 (9th Cir. 1995).
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cause lies outside this limited jurisdiction,... and the burden of establishing
the contrary rests upon the party asserting jurisdiction[.]
Kokkonen v. Guardian Life Ins. of America, 511 U.S. 375, 377 (1994) (citations
omitted). A plaintiff bears the burden to establish jurisdiction. Farmers Ins. Ex. v.
Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). Absent
jurisdiction, a case is subject to dismissal. Fed. R. Civ. P. 12(h)(3).
Furthermore, the federal courts are obligated to independently examine their
own jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). And
a district court may dismiss an action sua sponte whenever it appears that
jurisdiction is lacking. Fed. R. Civ. P. 12(h)(3); Fiedler v. Clark, 714 F.2d 77, 789 (9th Cir. 1983).
A federal court’s jurisdiction is generally limited to cases involving
diversity of citizenship (28 U.S.C. § 1332), a federal question (28 U.S.C. § 1331),
or cases in which the United States is a party (28 U.S.C. §§ 1345 and 1346).
Sections 1345 and 1346 are not applicable in this case because the United States is
not a party to this action.
1. Federal Question Jurisdiction
Federal question jurisdiction requires that the plaintiff’s civil action must
arise “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §
1331. As presently pled, Plaintiff’s complaint fails to set forth any basis for

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federal question jurisdiction under 28 U.S.C. § 1331. Plaintiff’s complaint does
not expressly plead any cause of action arising under any specific provision of the
United States Constitution, or the laws or treaties of the United States. If Plaintiff
intends to plead a cause of action under federal law, then he must identify the
specific federal right he alleges Defendants violated. As pled, however, Plaintiff’s
allegations fail to state a claim on which relief could be granted which would
invoke this Court’s federal question jurisdiction.
2. Diversity of Citizenship Jurisdiction
The district courts have jurisdiction over “civil actions where the matter in
controversy exceeds the sum or value of $75,000[,]” and the civil action is
between citizens of different States. 28 U.S.C. § 1332(a); Geographic
Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010). A
plaintiff must advance allegations, made in good faith, establishing that the
amount in controversy exceeds $75,000. Geographic Expedition, Inc., 599 F.3d at
1106. If it appears to the court to a legal certainty that the amount of the claim is
really less than the jurisdictional amount, then the court has authority to dismiss
the case for lack of jurisdiction. Crum v. Circus Circus Enterprises, 231 F.3d
1129, 1131 (9th Cir. 2000).
Here, Plaintiff has not plead any facts asserting that the amount in
controversy exceeds $75,000. Although Plaintiff alleges he has “over 1/3 of a
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Billion Dollars in projects [] tied up in [his] business venture[,]” he does not allege
any amount of money that is actually in controversy in this case. Dkt. 2 at 6.
Therefore, Plaintiff has not made any good faith assertion of the requisite amount
in controversy, and has not presented sufficient information on which the Court
can assess whether diversity jurisdiction exists under 28 U.S.C. § 1332.
Additionally, diversity of citizenship jurisdiction requires complete
diversity of citizenship between the plaintiff and each of the defendants. Williams
v. United Airlines, Inc., 500 F.3d 1019, 1025 (9th Cir. 2007) (citing Exxon Mobil
Corp. v. Allapattah Services, Inc., 545 U.S. 546, 553 (2005)). Each plaintiff must
be a citizen of a different state than each of the defendants. Morris v. Princess
Cruises, Inc. 236 F.3d 1061, 1067 (9th Cir. 2001).
Plaintiff alleges Defendant “Greenbrier, Greenbrier IA” is a citizen of
Virginia. But, Plaintiff also refers to other individuals in the body of his
complaint without identifying the State of their citizenship. If Plaintiff intends to
name those individuals as Defendants in this action, he must affirmatively allege
the citizenship of each individual.
B. Venue
Federal law at 28 U.S.C. § 1391 sets forth the rules for determining the
proper venue for cases filed in the federal courts. In general, the proper venue for
an action is as follows:
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(b) Venue in general.--A civil action may be brought in–
(1) a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought
as provided in this section, any judicial district in which any
defendant is subject to the court's personal jurisdiction with respect to
such action.
28 U.S.C. § 1391(b).
Under the circumstances of this case, Plaintiff’s allegations do not establish
that venue is proper in the District of Montana under any of the alternative
provisions of section 1391. Plaintiff does not allege that all Defendants reside in
the District of Montana. Additionally, Plaintiff’s allegations do not establish that
a substantial part of the events or omissions that are the subject of this lawsuit
occurred in the District of Montana. Finally, Plaintiff’s allegations do not invoke
the venue provisions in alternative (3) listed above.
Absent sufficient allegations establishing that the District of Montana is the
proper venue for this action, this lawsuit is subject to transfer or dismissal based
on improper venue as provided under 28 U.S.C. § 1406(a). The district court has
discretion in determining whether to either dismiss or transfer an action under
section 1406(a). King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992).
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C. Short and Plain Statement of Jurisdiction, Claims and Relief
Plaintiff is advised that Federal Rules of Civil Procedure Rule 8(a) requires
“a short and plain statement of the grounds for the court’s jurisdiction,” “a short
and plain statement of the claim showing that the pleader is entitled to relief,” and
“a demand for the relief sought[.]” Fed. R. Civ. P. 8(a). For purposes of stating a
claim for relief, a pleading need only “give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (internal quotations and citations omitted).
Plaintiff has failed to allege any facts as required under Fed. R. Civ. P. 8(a).
Plaintiff, must provide short and plain statements advising the Court of the
following:
(1) what it is that each Defendant did or failed to do. Plaintiff shall explain
each Defendant’s role in the events which give rise to this lawsuit; and
(2) what injury Plaintiff suffered as a result of each Defendant’s conduct.
Additionally, Plaintiff must set forth factual allegations establishing this
Court’s jurisdiction. Specifically, Plaintiff shall expressly plead facts establishing
diversity of citizenship, and that the matter in controversy exceeds the sum or
value of $75,000. 28 U.S.C. § 1332(a). Plaintiff shall identify the State of which
each Defendant is a citizen. Alternatively, Plaintiff must identify the specific

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federal law each Defendant allegedly violated on which federal question
jurisdiction could be based.
Finally, Plaintiff must plead facts which establish that the District of
Montana is the proper venue for this action. Specifically, Plaintiff shall identify:
(1) the State in which each Defendant resides; and
(2) the judicial district in which the events or omissions giving rise to his
claims occurred.
IV. CONCLUSION
Based on the foregoing, the Court finds Plaintiff’s complaint, as presently
pled, is subject to dismissal for lack of jurisdiction, improper venue, and for failure
to state a claim on which relief could be granted. In view of Plaintiff’s pro se
status, however, the Court will afford him an opportunity amend his allegations to
cure the defects noted in this Order.
ACCORDINGLY, IT IS HEREBY ORDERED that on or before May 23,
2012, Plaintiff shall file an amended complaint. The Clerk of Court is directed to
provide him with a form for filing an amended complaint. Pursuant to Fed. R.
Civ. P. 8(a), Plaintiff’s amended complaint shall set forth a short and plain
statement of (1) his claims against each individual defendant showing that he is
entitled to relief, (2) the grounds for the court’s jurisdiction over this action, and

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(3) the facts which indicate that the District of Montana is the proper venue for
this lawsuit.
At all times during the pendency of this action, Plaintiff shall immediately
advise the Court of any change of address and its effective date. Such notice shall
be captioned “NOTICE OF CHANGE OF ADDRESS.” Failure to file a NOTICE
OF CHANGE OF ADDRESS may result in the dismissal of the action for failure
to prosecute pursuant to Fed. R. Civ. P. 41(b).
Plaintiff is advised that his failure to prosecute this action, to comply with
the Court’s orders, or to comply with the Federal Rules of Civil Procedure may
also result in a recommendation that this case be dismissed with prejudice
pursuant to Fed. R. Civ. P. 41(b). The Court may dismiss this case under Rule
41(b) sua sponte under certain circumstances. See, e.g., Link v. Wabash Railroad
Co., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United
States Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).
DATED this 23rd day of April, 2012.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

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