United States District Court, W.D. Washington, Tacoma
CARL A. WESCOTT, Plaintiff,
JIM UPSHAW, et al., Defendants.
ORDER RENOTING IN FORMA PAUPERIS APPLICATION,
DISMISSING PROPOSED COMPLAINT WITHOUT PREJUDICE, AND TO
SUBMIT A NEW PROPOSED COMPLAINT
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE
who proceeds pro se, requests to proceed in
forma pauperis (“IFP”) in this civil matter
alleging diversity jurisdiction. Pursuant to Amended General
Order 02-19, the District Court has referred plaintiff's
application to the undersigned.
plaintiff's allegations are insufficient to establish
that this Court has diversity jurisdiction over the claims in
plaintiff's complaint, his proposed complaint is
dismissed without prejudice. If plaintiff wishes to proceed
in forma pauperis, he must file a proposed amended
complaint that adequately states a claim on or before
November 22, 2019.
who says that he is a resident of San Francisco County,
California (Dkt. 1-2, at 1), and whose mailing address is in
San Francisco, California (Dkt. 2), initiated this matter by
filing an IFP application, including a proposed complaint, on
September 24, 2019. Dkt. 1.
proposed complaint invokes the Court's diversity
jurisdiction and seeks to bring suit against four named
defendants: HPA Mortgage, LLC (“a California
LLC”), Chis Patterson and Jim Upshaw (who plaintiff
alleges are Washington residents), and Upshaw Performance
Systems, Inc. (“a Corporation in Port Townsend,
Washington”). Dkt. 1-1, at 2. Plaintiff also lists 25
John Doe defendants. Plaintiff states that he “is an
individual who resided in San Francisco, California for many
years and is still in San Francisco.” Dkt. 1-1, at 2.
states that he is an international real estate developer,
that defendants had invested approximately $675, 000 in one
of plaintiff's properties in Ecuador, and that the
mortgage debt totaled more than $3 million per
defendants' accounting and was cross-collateralized with
a second property. See Dkt. 1-1, at 6. Plaintiff
claims that after the primary property's value dropped,
he contracted with defendants' agent, acting on
defendants' behalf, to sell the second property to a
third party-with defendants agreeing to “remove and
reconvey the mortgage”-in order to recoup some of the
investors' losses. See Dkt. 1-1, at 8. However,
plaintiff alleges that defendants, through their agent,
failed to honor their obligation to reconvey the mortgage on
the second property after it was sold. See Dkt. 1-1,
at 10. Plaintiff further alleges extortion and conversion by
defendants' agent. See Dkt. 1-1, at 10. Based on
these allegations, plaintiff alleges breach of contract,
promissory estoppel, conversion, tortious interference with
business expectancy, breach of the covenant of good faith and
fair dealing, and requests an accounting. See Dkt.
1-1, at 10-14.
matter is before the Court to screen plaintiff's in
forma pauperis application- including his proposed
complaint-under 28 U.S.C. § 1915(e).
28 U.S.C. § 1915(e)(2), the Court is authorized to
review the sufficiency of a pleading when a plaintiff seeks
to proceed in forma pauperis. Moreover, federal
courts are under a continuing duty to confirm their
jurisdiction power and are “obliged to inquire sua
sponte whenever a doubt arises as to [its] existence. .
. .” Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 278 (1977).
Court is one of limited jurisdiction-meaning that it must
have subject matter jurisdiction over the claims alleged.
Plaintiff invokes the Court's diversity jurisdiction
under 28 U.S.C. § 1332, which provides for
“original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between . . .
citizens of different states.” 28 U.S.C. §
1332(a)(1). However, to proceed under the Court's
diversity jurisdiction, plaintiff must allege complete
diversity of the parties-that is, that “the citizenship
of each plaintiff is diverse from the citizenship of each
defendant.” Caterpillar, Inc. v. Lewis, 519
U.S. 61, 68 (1996).
natural person's citizenship for purposes of § 1332
is determined by his “state of domicile”-that is,
his “permanent home, where he resides with the
intention to remain or to which he intends to
return.” Kanter v. Warner-Lambert Co., 265
F.3d 853, 857 (9th Cir. 2001). Here, plaintiff's
allegations support that he is a “citizen” within
the meaning of § 1332 of the State of California-in his
complaint, he states that he “resided in”
California for many years and is “still in San
Francisco.” Dkt. 1-1, at 2.
also names an LLC defendant-“a California LLC.”
Dkt. 1-1, at 2. “[A]n LLC is a citizen of every state
of which its owners/members are citizens.” Johnson
v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th
Cir. 2006). Plaintiff does not identify all the members of
the LLC, but he does list one-defendants' agent-who he
states is a “licensed real estate broker . . . in the
State of California.” Dkt. 1-1, at 2.
allegations fail to establish diversity jurisdiction because
he does not identify the citizenship of each of the LLC's
members. Moreover, he specifically identifies one LLC
member-the agent-who appears to be a California
“citizen” within the meaning of § 1332. And
to the extent that any other information is provided about
the LLC's unidentified members, plaintiff ...