Didier v. Nationstar Mortgage LLC

Filing 10

REPORT AND RECOMMENDATION Recommending dismissal without prejudice of 1 Complaint and recommending deadline to file an amended complaint; Granting 1 Application for Leave to proceed In Forma Pauperis. Objections to R&R due by 9/21/2017. Signed by Magistrate Judge Carl W. Hoffman on 9/7/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JAMES DIDIER,

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Plaintiff,
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vs.
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NATIONSTAR MORTGAGE, LLC, et al.,
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Defendants.
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__________________________________________)

Case No. 2:16-cv-02127-JCM-CWH
SCREENING ORDER AND
REPORT AND
RECOMMENDATION

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Presently before the court is pro se Plaintiff James Didier’s application to proceed in forma

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pauperis (ECF No. 5), filed on September 23, 2016.

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I.

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In Forma Pauperis Application
Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability

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to prepay fees and costs or give security for them. Accordingly, Plaintiff’s request to proceed in

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forma pauperis will be granted.

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II.

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Jurisdiction
Before this court may consider Plaintiff’s complaint (ECF No. 1-1), it must determine

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whether it has proper jurisdiction over this matter. “Federal district courts are courts of limited

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jurisdiction, possessing only that power authorized by Constitution and statute.” K2 Am. Corp. v.

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Roland Oil & Gas, LLC, 653 F.3d 1024, 1027 (9th Cir. 2011) (quotation omitted). Federal district

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courts “have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties

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of the United States.” 28 U.S.C. § 1331. Federal district courts also have original jurisdiction over

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civil actions in diversity cases “where the matter in controversy exceeds the sum or value of

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$75,000” and where the matter is between “citizens of different States.” 28 U.S.C. § 1332(a).

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“Section 1332 requires complete diversity of citizenship; each of the plaintiffs must be a citizen of

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a different state than each of the defendants.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067
(9th Cir. 2001). “If the court determines at any time that it lacks subject-matter jurisdiction, the

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court must dismiss the action.” FED. R. CIV. P. 12(h)(3).

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Here, Plaintiff’s claim does not invoke either diversity or federal question jurisdiction.

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Plaintiff, a citizen of Nevada, does not allege that any of named Defendants Nationstar Mortgage,

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LLC, Bank of New York Mellon, Aldridge Pite, LLP, or Carrington Real Estate Services are the

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citizen of another state, so this claim cannot proceed under diversity jurisdiction. Neither does

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Plaintiff raise any question of federal law, as the complaint alleges only state law claims of

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unlawful eviction and fraud. The court therefore does not find it has jurisdiction over this matter.

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The Court will dismiss Plaintiff’s complaint with leave to amend. If Plaintiff chooses, he may file

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an amended complaint addressing the issues of jurisdiction noted above.

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Additionally, Plaintiff is advised that if he files an amended complaint, the original

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complaint (ECF No. 1-1) no longer serves any function in this case. As such, the amended

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complaint must be complete in and of itself without reference to prior pleadings or other

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documents. The court cannot refer to a prior pleading or other documents to make Plaintiff’s

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amended complaint complete.

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III.

Conclusion
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave to Proceed In Forma

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Pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this

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action. 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 fees or costs. This order

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

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government expense.

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IT IS THEREFORE ORDERED that the Clerk of the Court must file Plaintiff’s complaint

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(ECF No. 1-1).

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IT IS RECOMMENDED that the complaint (ECF No. 1-1) be DISMISSED without

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prejudice for the court’s lack of jurisdiction in this matter. Plaintiff shall have leave to amend, if he

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so chooses.

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IT IS FURTHER RECOMMENDED that be given a deadline to file an amended complaint.

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DATED: September 7, 2017
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C.W. Hoffman, Jr.
United States Magistrate Judge

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NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be

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in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has

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held that the courts of appeal may determine that an appeal has been waived due to the failure to

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file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit

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has also held that (1) failure to file objections within the specified time and (2) failure to properly

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address and brief the objectionable issues waives the right to appeal the District Court’s order

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and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153,

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1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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