Anderson v. Key Bank of Oregon, No. 3:2009cv00115 - Document 5 (D. Or. 2009)

Court Description: OPINION & ORDER: Plaintiff is directed to file an amended in forma pauperis application, within 30 days of the date of this order. Additionally, Plaintiff must file an amended complaint, curing the deficiencies noted above, within 30 days of the date of this order. In the event that Plaintiff fails to file such an amended complaint, this case will be dismissed with prejudice for failure to state a claim. Signed on 2/4/09 by Judge Anna J. Brown. (gm)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ROBERT T. ANDERSON, Plaintiff, CY.09-115-PK OPINION AND ORDER v. KEY BANK OF OREGON, Defendant. Brown, Judge: PlaintiffRobeli Anderson, appearing pro se, filed this action against Key Bank of Oregon. Anderson's motion to proceed in forma pauperis (# I) is presently before the court. An examination of the application reveals that it is incomplete. Accordingly, I deny Anderson's motion to proceed in forma pauperis with leave to refile. In addition, for the reasons set forth below, Anderson's complaint (#2) is dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. Page I - OPINION AND ORDER BACKGROUND On January 28,2009, Anderson filed a complaint and informa pauperis application. Anderson's application is incomplete in that he only completed the first two questions. Additionally, Anderson did not sign his application. Anderson's complaint consists entirely of the word "Nonpayment." LEGAL STANDARDS Federal Civil Procedure Rule 12(h)(3) provides that "[i]fthe court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3); see also Cal. Diversified Promotions, Inc. v. lvlusick, 505 F.2d 278, 280 (9th Cil'. 1974) ("It has long been held that a judge can dismiss sua sponte for lack ofjurisdiction"). Federal courts are presumptively without jurisdiction over civil cases and the burden of establishing the contraty rests upon the patty asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375,377 (1994). A court must sua sponte dismiss an in forma pauperis action that fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2). A COUlt should dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) if the complaint does not "raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true." Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted) (footnote omitted). In cases involving a plaintiff proceeding pro se, this court construes the pleadings liberally and affords the plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621,623 (9th Cil'. 1988). That is, COUtts hold pro se pleadings to a less Page 2 - OPINION AND ORDER stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Specifically, apro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. See Karim-Panahi, 839 F.2d at 623-624. DISCUSSION Federal courts are courts of limited jurisdiction and cannot hear evelY dispute presented by litigants. See Stock West, Inc. v. Confederated Tribes ofthe Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). A federal district court is empowered to hear only those cases that are within the judicial power conferred by the United States Constitution and those that fall within the area ofjurisdiction granted by Congress. Richardson v. United States, 943 F.2d 1107, 1112-13 (9th Cir. 1991). Original jurisdiction must be based either on a claim involving the Constitution, laws, or treaties of the United States, 28 U.S.C. § 1331, or on diversity of citizenship, which applies to suits totaling more than $ 75,000 in controversy between citizens of different states, 28 U.S.C. § 1332. The court has a continuing duty to dismiss an action whenever it appears that the court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); Billingsley v. Comm'r ofthe IR.S., 868 F.2d 1081, 1085 (9th Cir. 1989). In addition to the subject matter jurisdiction requirement, Federal Civil Procedure Rule 8 provides that: "A pleading that states a claim for relief must contain: (1) a ShOlt and plain statement of the grounds for the COUlt's jurisdiction, ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 8. This COlut does not have subject matter jurisdiction based on the facts alleged in the Page 3 - OPINION AND ORDER complaint. The complaint contains no cause of action arising under, or that contains any reference to, any federal statute or the U.S. Constitution. The complaint does not indicate Anderson's or the defendant's state citizenship, nor does it allege that the amount in controversy requirement has been met. Apmt from the lack of subject matter jurisdiction, Anderson's complaint fails to state a claim on which relief may be granted. The complaint lacks even a minimal statement suggesting that Anderson could be entitled to relief ii'om the named defendant. The complaint also does not set forth the relief Anderson seeks. As noted above, wherever possible, a court should grant a pro se plaintiff leave to amend his or her complaint to cure its deficiencies. Here, Anderson's complaint is deficient in each of the following pmticulars: I) the complaint fails to contain a short and plain statement of the basis for federal subject matter jurisdiction; 2) the complaint fails to contain a shOlt and plain statement of the facts underlying Anderson's allegation of nonpayment; 3) the complaint fails to contain a demand for judgment stating plainly each element of the relief Anderson seeks, including, if applicable, a description of the monetary damages to which Anderson believes he is entitled. In the event Anderson elects to pursue this action, he must submit a completed, signed, in forma pauperis application and must amend his complaint to cure each of the above-noted deficiencies. As cU11'ently drafted, Anderson's complaint does not state a basis for this court's jurisdiction, nor does it state a claim upon which relief may be granted, and the defendant should not be required to expend time and other resources responding to it. Page 4 - OPINION AND ORDER CONCLUSION For all of the foregoing reasons, plaintiff is directed to file an amended in/orilla pauperis application, within 30 days of the date of this order. Additionally, plaintiff must file an amended complaint, curing the deficiencies noted above, within 30 days of the date of this order. In the event that plaintiff fails to file such an amended complaint, this case will be dismissed with prejudice for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2). rJYI.. Dated this Lf th day ofFebrumy, 2009. A~ United States District Judge Page 5 - OPINION AND ORDER

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