Middleton v. Bank of America, N.A. et al

Filing 3

ORDER. IT IS ORDERED that Plaintiff's 1 Application for Leave to Proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court shall file the 1 -2 Complaint. IT IS FURTHER ORDERED that the Complaint is DISMISSED, with leave to amend. Plaintiff will have until November 30, 2015, to file an Amended Complaint. IT IS FURTHER ORDERED that Plaintiffs 2 Motion to Expedite Ruling is DENIED as moot. Signed by Magistrate Judge Nancy J. Koppe on 10/28/2015. (Copies have been distributed pursuant to the NEF - NEV)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ERVIN MIDDLETON,

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Plaintiff,

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vs.

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BANK OF AMERICA, N.A, et al.,

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Defendants.

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Case No. 2:15-cv-01867-APG-NJK
ORDER

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Plaintiff Ervin Middleton is proceeding in this action pro se, has requested authority pursuant to

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28 U.S.C. § 1915 to proceed in forma pauperis, and submitted a Complaint (Docket No. 1) on September

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29, 2015. This proceeding was referred to this court by Local Rule IB 1-9.

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I.

In Forma Pauperis Application

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Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay fees and

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costs or give security for them. Accordingly, the request to proceed in forma pauperis will be granted

20 pursuant to 28 U.S.C. § 1915(a). The court will now review Plaintiff’s Complaint.
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Screening the Complaint

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Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint

23 pursuant to § 1915(a). Federal courts are given the authority dismiss a case if the action is legally
24 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief
25 from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a court dismisses a
26 complaint under § 1915(a), the plaintiff should be given leave to amend the complaint with directions as
27 to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be
28 cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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A properly pled complaint must provide “a short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555

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(2007). Although Rule 8 does not require detailed factual allegations, it demands “more than labels and

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conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct.

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1937, 1949 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all

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well-pled factual allegations contained in the complaint, but the same requirement does not apply to legal

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conclusions. Iqbal, 129 S.Ct. at 1950. Mere recitals of the elements of a cause of action, supported only

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by conclusory allegations, do not suffice. Id. at 1949. Secondly, where the claims in the complaint have

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not crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550 U.S.

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at 570.

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The federal venue statute requires that a civil action be brought in (1) a judicial district in which any

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defendant resides, if all defendants reside in the same state where the district is located; (2) a judicial

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district in which a substantial part of the events or omissions giving rise to the claim occurred, or a

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substantial part of property that is the subject of the action is situated; or (3) a judicial district in which any

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defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in

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which the action may otherwise be brought. 28 U.S.C. § 1391(b). “Under 28 U.S.C. § 1406(a), the court

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may dismiss an action laying venue in the wrong district.” Southland Transit, 2011 U.S. Dist. Lexis 24761,

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at *2.

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Plaintiff’s complaint suffers from numerous deficiencies. See Docket No. 1-2. Initially, the

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property which is the subject of the loan at issue is located in Virginia, not within the District of Nevada.

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Id. at 3-4, 9, 11-12. As such, the District of Nevada is not a proper venue for Plaintiff’s lawsuit. 28 U.S.C.

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§ 1391(b). Additionally, the borrower on the loan is Elaine M. Simmons, not Plaintiff. Therefore, Plaintiff

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lacks standing to bring this lawsuit. See Wilson v. JPMorgan Chase Bank, NA., 2010 WL 2574032, *6

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(E.D.Ca. 2010). Finally, the statute Plaintiff cites in his complaint requires the property at issue to be used

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as the principal dwelling of the person to whom credit is extended. 15 U.S.C. §§ 1635(a). Plaintiff has

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failed to allege facts that state a claim under this statute.

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Accordingly and for good cause shown,
IT IS ORDERED that Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff
shall not be required to pay the filing fee of four hundred dollars ($400.00).

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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to conclusion

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without the necessity of prepayment of any additional fees or costs or the giving of a security therefor. This

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Order granting leave to proceed in forma pauperis shall not extend to the issuance of subpoenas at

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government expense.

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IT IS FURTHER ORDERED that the Clerk of the Court shall file the Complaint.

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IT IS FURTHER ORDERED that the Complaint is DISMISSED, with leave to amend. Plaintiff

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will have until November 30, 2015, to file an Amended Complaint, if Plaintiff believes he can correct the

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noted deficiencies. If Plaintiff chooses to amend the complaint, Plaintiff is informed that the Court cannot

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refer to a prior pleading (i.e., the original Complaint) in order to make the Amended Complaint complete.

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This is because, as a general rule, an Amended Complaint supersedes the original Complaint. See Loux

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v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Local Rule 15-1 requires that an Amended Complaint be

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complete in itself without reference to any prior pleading. Once a plaintiff files an Amended Complaint,

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the original Complaint no longer serves any function in the case. Therefore, in an Amended Complaint,

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as in an original Complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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Failure to comply with this Order will result in the recommended dismissal of this case, without prejudice.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Expedite Ruling (Docket No. 2) is

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DENIED as moot.
Dated this 28th day of October, 2015.

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________________________________________
______________________________
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NANCY J. KOPPE
ANCY . KOPPE
PP
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UNITED STATES MAGISTRATE JU
NITED STATES MAGISTRATE JUDGE
TA S A

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