Middleton v. Citibank, N.A. Inc.

Filing 2

ORDER granting 1 IFP application; directing Clerk to file the complaint; dismissing the complaint with leave to amend; giving Plaintiff to 5/20/2016 to file amended complaint. Signed by Magistrate Judge Nancy J. Koppe on 4/22/2016. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 ERVIN MIDDLETON, 15 ) ) ) ) ) ) ) ) ) ) 16 Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28 U.S.C. 17 § 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff has also submitted a complaint. 18 Docket No. 1-1. 19 I. 11 Plaintiff(s), 12 vs. 13 CITIBANK, N.A., INC., 14 Defendant(s). Case No. 2:16-cv-00622-RFB-NJK ORDER In Forma Pauperis Application 20 Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay fees 21 and costs or give security for them. Docket No. 1. Accordingly, the request to proceed in forma 22 pauperis will be granted pursuant to 28 U.S.C. § 1915(a). 23 INSTRUCTED to file the complaint on the docket. 24 II. The Clerk’s Office is further Screening the Complaint 25 Upon granting a request to proceed in forma pauperis, courts additionally screen the 26 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the 27 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 28 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 1 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 2 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 3 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 4 F.3d 1103, 1106 (9th Cir. 1995). Allegations of a pro se complaint are held to less stringent 5 standards than formal pleadings drafted by lawyers. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 6 2010). 7 A claim may be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). 8 Federal courts are courts of limited jurisdiction and possess only that power authorized by the 9 Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). “A federal court is presumed 10 to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. 11 V. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore, 12 federal subject matter jurisdiction must exist at the time an action is commenced. Mamigonian v. 13 Biggs, 710 F.3d 936, 942 (9th Cir. 2013). Further, as Plaintiff is the party who invokes the court’s 14 jurisdiction, Plaintiff bears the burden of proving that the case is properly in federal court. 15 McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors 16 Acceptance Corp., 298 U.S. 178, 189 (1936)). 17 Here, the Complaint says that this Court’s jurisdiction is conferred by 15 U.S.C. § 1681p. 18 Docket No. 1-1 at 2. Actions brought under § 1681p may be asserted “not later than the earlier of 19 . . . 2 years after the date of discovery by the plaintiff of the violation that is the basis for such 20 liability; or . . . 5 years after the date on which the violation that is the basis for such liability 21 occurs.” 15 U.S.C. § 1681p. Plaintiff alleges that he obtained a judgment against Defendant “on 22 April 17, 2013[,] in Las Vegas Justice Court” based on actions taken by Defendant on December 23 1, 2013. Id. Plaintiff filled this case on March 31, 2016. Id. If Plaintiff discovered the alleged 24 violation that is the basis for liability on the date the prior judgment was entered, the latest this 25 action could be brought under § 1681p was April 17, 2015. It appears from the face of the complaint 26 that the statute of limitations in § 1681p has expired. See Jablon v. Dean Witter & Co., 614 F.2d 27 677, 682 (9th Cir. 1980). The only jurisdictional basis provided by Plaintiff is invalid. Therefore, 28 Plaintiff has failed to carry his burden of showing that this case is properly in federal court. -2- 1 III. Conclusion 2 Accordingly, IT IS ORDERED that: 3 1. 4 5 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). 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 6 prepayment of any additional fees or costs or the giving of a security for them. This 7 Order granting leave to proceed in forma pauperis shall not extend to the issuance 8 and/or service of subpoenas at government expense. 9 3. The Clerk of the Court shall file the Complaint. 10 4. The Complaint is DISMISSED with leave to amend. Plaintiff will have until May 11 20, 2016, to file an Amended Complaint, if he believes he can correct the noted 12 deficiencies. If Plaintiff chooses to amend the complaint, Plaintiff is informed that 13 the Court cannot refer to a prior pleading (i.e., his original Complaint) in order to 14 make the Amended Complaint complete. This is because, as a general rule, an 15 Amended Complaint supersedes the original Complaint. Local Rule 15-1 requires 16 that an Amended Complaint be complete in itself without reference to any prior 17 pleading. Once a plaintiff files an Amended Complaint, the original Complaint no 18 longer serves any function in the case. Therefore, in an Amended Complaint, as in 19 an original Complaint, the Court’s jurisdiction as well as each claim and the 20 involvement of each defendant must be sufficiently alleged. Failure to comply with 21 this order will result in the recommended dismissal of this case. 22 IT IS SO ORDERED. 23 DATED: April 22, 2016 24 25 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 26 27 28 -3-

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