Smith v. Rivara et al

Filing 4

ORDER denying 1 Motion to Transfer Venue. Plaintiff shall show cause within 14 days why the case should not be dismissed for failure to state a claim. Signed by Chief Judge Robert C. Jones on 4/26/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANDRE SMITH,
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Plaintiff,
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vs.
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ANTHONY RIVARA et al.,
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Defendants.
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3:12-cv-00556-RCJ-WGC
ORDER

This case arises out of a bank’s alleged failure to clear a check deposited by an

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acquaintance of pro se Plaintiff Andre Smith before Plaintiff himself attempted to cash it,

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ultimately resulting in a $900 loss. Plaintiff asks for relief in the amount of $25,900 based upon

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fraud, perjury, and the Sixteenth Amendment. First, the Court denies the Motion to Transfer

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Venue (ECF No. 1). Plaintiff has waived any challenge to venue by filing his action here.

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Second, the Court will order Plaintiff to show cause why the case should not be dismissed for

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lack of subject matter jurisdiction or failure to state a claim. Actions under state law in the

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federal courts only lie if the parties are completely diverse and the amount in controversy exceeds

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$75,000. See 28 U.S.C. § 1332(a). Here, Plaintiff has specifically alleged facts negating

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diversity. Furthermore, perjury is not a common law cause of action, Plaintiff has failed to plead

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fraud with particularity, and Plaintiff has not served any Defendant. Although a federal claim

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could support supplementary jurisdiction over the state law claims, there is no cause of action to

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enforce the Sixteenth Amendment, which concerns the United States’ power to levy income

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taxes against individuals.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Transfer Venue (ECF No. 1) is DENIED.

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IT IS FURTHER ORDERED that Plaintiff shall show cause within fourteen (14) days of

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the entry of this order into the electronic docket why the case should not be dismissed for failure

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to state a claim.

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IT IS SO ORDERED.

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Dated this 10th day of of April, 2013.
Dated this 26th day April, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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