Wescott v. Upshaw

8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT TACOMA 10 CARL A. WESCOTT, CASE NO. 3:20-CV-5442-BHS 1] Plaintiff, ORDER DISMISSING PLAINTIFF'S 12 v. COMPLAINT WITHOUT PREJUDICE, GRANTING PLAINTIFF LEAVE TO 13) JIM UPSHAW, ct al., AMEND, AND RENOTING Defend PLAINTIFF'S MOTION TO PROCEED 14 erenaants. IN FORMA PAUPERIS 7 Plaintiff Carl A. Wescott, proceeding pro se, filed this action on May 5, 2011 alleging a ig breach of contract. See Dkt. 1-1. Plaintiff filed an Application to Proceed Jn Forma Pauperis (“IFP”) on June 1, 2020. Dkt. 4. The District Court has referred Plaintiff's pending Application to Proceed IFP and Proposed Complaint to United States Magistrate Judge David W. Christel pursuant to Amended General Order 02-19.

59 Having reviewed and screened Plaintiff's Proposed Complaint under 28 U.S.C. § 53 1915(e)(2), the Court finds this Court lacks jurisdiction to hear this case. The Court dismisses |} ORDER DISMISSING PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE, GRANTING PLAINTIFF LEAVE TO AMEND, AND RENOTING PLAINTIFF'S MOTION TO PROCEED IN FORMA } Plaintiff's Proposed Complaint without prejudice, re-notes the pending Application to Proceed || IFP, and provides Plaintiff leave to file an amended pleading by July 31, 2020, to cure the || deficiencies identified herein.

4 I. Background 5 Plaintiff alleges Defendants Jim Upshaw, Upshaw Performance Systems, Inc., Chris || Patterson, HPA Mortgage LLC, and Does 1 through 25 breached a development contract causing | Plaintiff harm. Dkt. 1-1. Plaintiff alleges several other state law claims arising from Defendants’ || alleged conduct. /d.

9 II. Discussion 10 The district court may permit indigent litigants to proceed IFP upon completion of a |] proper affidavit of indigency. See 28 U.S.C. § 1915(a). However, the “privilege of pleading in || forma pauperis . . . in civil actions for damages should be allowed only in exceptional || circumstances.” Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1986). The Court has broad || discretion in denying an application to proceed IFP. Weller v. Dickson, 314 F.2d 598 (9th Cir. || 1963), cert. denied 375 U.S. 845 (1963).

16 Notwithstanding IFP status, the Court must subject each civil action commenced pursuant | to 28 U.S.C. § 1915(a) to mandatory screening and order the swa sponte dismissal of any case || that is “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks || monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); || see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 21 | 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126—27 (9th Cir. |] 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua || sponte dismiss an IFP complaint that fails to state a claim).

24 |} ORDER DISMISSING PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE, GRANTING PLAINTIFF LEAVE TO AMEND, AND RENOTING PLAINTIFF'S MOTION TO PROCEED IN FORMA 1 Unless it is clear a pro se plaintiff cannot cure the deficiencies of a complaint, the Court || will provide the pro se plaintiff with an opportunity to amend the complaint to state a plausible || claim. See United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (“Dismissal || without leave to amend is improper unless it is clear, upon de novo review, that the complaint || could not be saved by any amendment.”).

6 Here, Plaintiff's Proposed Complaint suffers from deficiencies requiring dismissal if not || corrected in an amended complaint. In the Proposed Complaint, Plaintiff states this Court has | jurisdiction over this case through diversity jurisdiction. Dkt. 1-1, p. 4. “The district courts shall || have original jurisdiction of all civil actions where the amount in controversy exceeds the sum or || value of $75,000, . . and is between citizens of different states[.]” 28 U.S.C. § 1332(a). Diversity |] jurisdiction requires complete diversity of citizenship, i.e., that every plaintiff be a citizen of a || different state from every defendant. Grancare, LLC v. Thrower ex rel. Mills, 889 F.3d 543, 548 | (9th Cir. 2018) (citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)).

14 Here, Plaintiff has failed to allege complete diversity. Plaintiff alleges he is a resident of || California. Dkt. 1-1, p. 2. He alleges Defendants Upshaw and Patterson are residents of || Washington State and he alleges Defendant Upshaw Performance Systems, Inc. is a corporation || located in Washington State. /d. However, Plaintiff also states Defendant HPA Mortgage, LLC is | a California LLC. /d. Plaintiff and Defendant HPA Mortgage, LLC are both citizens of |] California. As Plaintiff and one Defendant are citizens of the same state, there is not complete || diversity and this Court lacks jurisdiction to hear this case.

21 The Court also notes it is unclear if venue is proper in the Western District of || Washington. The Proposed Complaint fails to adequately show the claims in the Proposed || Complaint are properly heard in the Western District of Washington beyond three Defendants |} ORDER DISMISSING PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE, GRANTING PLAINTIFF LEAVE TO AMEND, AND RENOTING PLAINTIFF'S MOTION TO PROCEED IN FORMA | being located in this district. If Plaintiff determines venue is not proper in the Western District of |} Washington, he may voluntarily dismiss this case. 3 Ill. __ Instructions to Plaintiff and the Clerk 4 Due to the deficiencies described above, the Court finds it lacks jurisdiction to hear this || case. Therefore, the Court dismisses Plaintiff's Proposed Complaint without prejudice. If || Plaintiff intends to pursue this action, he must file an amended complaint on or before July 31, || 2020. The amended complaint will act as a complete substitute for any previously filed || complaint, and not as a supplement. If Plaintiff fails to file an amended complaint or otherwise | respond, the undersigned will recommend that the Application to Proceed IFP be denied and that || the case be closed.

11 If Plaintiff submits an adequate complaint, the Court will consider the Application to || Proceed IFP. The Clerk is directed to re-note the Application to Proceed IFP (Dkt. 4) for || consideration on July 31, 2020.

14 Dated this 25th day of June, 2020.

15 i ( igh 16 David W. Christel 17 United States Magistrate Judge |} ORDER DISMISSING PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE, GRANTING PLAINTIFF LEAVE TO AMEND, AND RENOTING PLAINTIFF'S MOTION TO PROCEED IN FORMA