Opinion
Case No. 2:18-cv-00611-APG-CWH
07-10-2019
F. MICHAEL McCLANNAHAN, Plaintiff, v. NEVADA STATE BANK, Defendant.
SCREENING ORDER AND REPORT AND RECOMMENDATION
Pro se plaintiff F. Michael McClannahan brings this case based on a dispute with defendant Nevada State Bank regarding cashier's checks. McClannahan submitted the affidavit required by 28 U.S.C. § 1915(a) showing an inability to prepay fees or costs or give security for them. Accordingly, the court will grant his request to proceed in forma pauperis. The court now screens his complaint.
I. ANALYSIS
A. Screening standard
Upon granting a request to proceed in forma pauperis, a court must screen the complaint under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims and dismiss claims that are frivolous, malicious, file to state a claim on which relief may be granted or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
In considering whether the complaint is sufficient to state a claim, all allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P'ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the complaint's deficiencies could not be cured through amendment, a pro se plaintiff should be given leave to amend the complaint with notice regarding the complaint's deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
B. Screening the complaint
McClannahan alleges he has been a customer of defendant Nevada State Bank for more than 30 years. (Attachment to Compl. (ECF No. 3).) According to McClannahan, he purchased three cashier's checks totaling $30,000 from the bank. (Id.) He subsequently misplaced the checks and therefore stopped payment on the checks. (Id.) According to McClannahan, the bank advised him there would be a waiting period before reimbursement. (Id.) McClannahan forgot about the issue and "much later" found the checks tucked away inside his phone book. (Id.) He took the checks to the bank to cash them or have them replaced, and the bank indicated research would be required. (Id.) Eventually, the bank notified McClannahan that it had located the stop payment order but could not locate a record of re-issued checks. (Id.) Given that it could not verify the disposition of the checks, the bank declined to reimburse McClannahan. (Id.) McClannahan now brings this action seeking reimbursement for the checks. (Id.) He alleges the basis for the court's jurisdiction is federal question jurisdiction, citing Nevada Revised Statutes §§ 104.3411 and 104.3412 as well as UCC 3-411. (Compl. (ECF No. 1-1) at 3.) McClannahan does not state when this incident with the bank occurred.
1. Jurisdiction
"Federal district courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute." K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1027 (9th Cir. 2011) (quotation omitted). Federal district courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Federal district courts have original jurisdiction over civil actions in diversity cases "where the matter in controversy exceeds the sum or value of $75,000" and where the matter is between "citizens of different States." 28 U.S.C. § 1332(a). "Section 1332 requires complete diversity of citizenship; each of the plaintiffs must be a citizen of a different state than each of the defendants." Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). Federal courts have the jurisdiction to determine their own jurisdiction. Special Investments, Inc. v. Aero Air, Inc., 360 F.3d 989, 992 (9th Cir. 2004). A court may raise the question of subject-matter jurisdiction sua sponte, and it must dismiss a case if it determines it lacks subject-matter jurisdiction. Id.; Fed. R. Civ. P. 12(h)(3).
Here, McClannahan does not allege facts invoking the court's jurisdiction. He alleges only claims based on Nevada state statutes and therefore does not invoke the court's federal question jurisdiction. Additionally, the amount in controversy is less than $75,000, and McClannahan does not allege the parties' citizenship. Thus, even liberally construing his complaint, he does not allege facts invoking the court's diversity jurisdiction. As the party seeking to invoke the court's jurisdiction, McClannahan bears the burden of establishing jurisdiction exists. See Naffe v. Frey, 789 F.3d 1030, 1040 (9th Cir. 2015). The court therefore will recommend that this case be dismissed for lack of subject-matter jurisdiction, with leave to amend.
2. Amendment
If McClannahan chooses to amend, he must include factual allegations demonstrating that a federal question exists, thereby allowing the court to determine its own jurisdiction. Alternatively, he must include factual allegations demonstrating there is complete diversity of citizenship and more than $75,000 in controversy. Additionally, McClannahan is advised that if he files an amended complaint, the original complaint (ECF No. 1-1) and its attachment (ECF No. 3) no longer serve any function in this case. As such, if plaintiff files an amended complaint, each claim and the involvement of each defendant must be alleged sufficiently. The court cannot refer to a prior pleading or to other documents to make plaintiff's amended complaint complete. The amended complaint must be complete in and of itself without reference to prior pleadings or to other documents. Finally, McClannahan is advised he must allege facts regarding the approximate dates of the incident at issue to allow the court to determine whether the incident occurred within the applicable statute of limitations.
II. CONCLUSION
IT IS THEREFORE ORDERED that plaintiff's Application for Leave to Proceed In Forma Pauperis (ECF No. 1) is GRANTED. Plaintiff is permitted to maintain this action to conclusion without prepaying fees or costs or giving security for them.
IT IS FURTHER ORDERED that the clerk of court must detach and separately file plaintiff's complaint (ECF No. 1-1).
IT IS RECOMMENDED that plaintiff's complaint be DISMISSED with leave to amend.
III. NOTICE
This report and recommendation is submitted to the United States district judge assigned to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation may file a written objection supported by points and authorities within fourteen days of being served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
DATED: July 10, 2019
/s/_________
C.W. HOFFMAN, JR.
UNITED STATES MAGISTRATE JUDGE