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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ERVIN MIDDLETON,

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Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28 U.S.C.

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§ 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff has also submitted a complaint.

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Docket No. 1-1.

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I.

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Plaintiff(s),
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vs.
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CITIBANK, N.A., INC.,
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Defendant(s).

Case No. 2:16-cv-00622-RFB-NJK
ORDER

In Forma Pauperis Application

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

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and costs or give security for them. Docket No. 1. Accordingly, the request to proceed in forma

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pauperis will be granted pursuant to 28 U.S.C. § 1915(a).

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INSTRUCTED to file the complaint on the docket.

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II.

The Clerk’s Office is further

Screening the Complaint

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Upon granting a request to proceed in forma pauperis, courts additionally screen the

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complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the

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complaint with directions as to curing its deficiencies, unless it is clear from the face of the

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complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70

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F.3d 1103, 1106 (9th Cir. 1995). Allegations of a pro se complaint are held to less stringent

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standards than formal pleadings drafted by lawyers. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

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2010).

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A claim may be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).

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Federal courts are courts of limited jurisdiction and possess only that power authorized by the

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Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). “A federal court is presumed

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to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc.

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V. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore,

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federal subject matter jurisdiction must exist at the time an action is commenced. Mamigonian v.

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Biggs, 710 F.3d 936, 942 (9th Cir. 2013). Further, as Plaintiff is the party who invokes the court’s

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jurisdiction, Plaintiff bears the burden of proving that the case is properly in federal court.

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McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors

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Acceptance Corp., 298 U.S. 178, 189 (1936)).

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Here, the Complaint says that this Court’s jurisdiction is conferred by 15 U.S.C. § 1681p.

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Docket No. 1-1 at 2. Actions brought under § 1681p may be asserted “not later than the earlier of

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. . . 2 years after the date of discovery by the plaintiff of the violation that is the basis for such

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liability; or . . . 5 years after the date on which the violation that is the basis for such liability

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occurs.” 15 U.S.C. § 1681p. Plaintiff alleges that he obtained a judgment against Defendant “on

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April 17, 2013[,] in Las Vegas Justice Court” based on actions taken by Defendant on December

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1, 2013. Id. Plaintiff filled this case on March 31, 2016. Id. If Plaintiff discovered the alleged

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violation that is the basis for liability on the date the prior judgment was entered, the latest this

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action could be brought under § 1681p was April 17, 2015. It appears from the face of the complaint

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that the statute of limitations in § 1681p has expired. See Jablon v. Dean Witter & Co., 614 F.2d

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677, 682 (9th Cir. 1980). The only jurisdictional basis provided by Plaintiff is invalid. Therefore,

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Plaintiff has failed to carry his burden of showing that this case is properly in federal court.
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III.

Conclusion

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Accordingly, IT IS ORDERED that:

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1.

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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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Plaintiff is permitted to maintain this action to conclusion without the necessity of

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prepayment of any additional fees or costs or the giving of a security for them. This

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

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and/or service of subpoenas at government expense.

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The Clerk of the Court shall file the Complaint.

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The Complaint is DISMISSED with leave to amend. Plaintiff will have until May

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20, 2016, to file an Amended Complaint, if he believes he can correct the noted

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deficiencies. If Plaintiff chooses to amend the complaint, Plaintiff is informed that

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the Court cannot refer to a prior pleading (i.e., his original Complaint) in order to

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make the Amended Complaint complete. This is because, as a general rule, an

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Amended Complaint supersedes the original Complaint. Local Rule 15-1 requires

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that an Amended Complaint be complete in itself without reference to any prior

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pleading. Once a plaintiff files an Amended Complaint, the original Complaint no

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longer serves any function in the case. Therefore, in an Amended Complaint, as in

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an original Complaint, the Court’s jurisdiction as well as each claim and the

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involvement of each defendant must be sufficiently alleged. Failure to comply with

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this order will result in the recommended dismissal of this case.

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IT IS SO ORDERED.

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DATED: April 22, 2016

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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