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Piovo v. Stone

United States District Court, D. Nevada

March 9, 2015

JOSEPH EUGENE PIOVO, individually and as Beneficiary of the Vice Roy United Nations Credit and Commerce International Blind Trust, Plaintiff,
v.
ROBERT STONE; ANTONIETA TOVARGUZMAN; MERSCORP, INC.; CBSK FINANCIAL GROUP, INC.; U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR IN INTEREST TO BANK OF AMERICA, NATIONAL ASSOCIATION AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR CERTIFICATE HOLDERS OF BEAR STERNS ASSET BACKED SECURITIES I, LLC ASSET BACKED CERTIFICATES, SERIES 2006-HE8; AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER SUCH PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE TITLE, ESTATE, LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO Plaintiff TITLE THERETO; Does 1-100, inclusive, Defendants.

ORDER DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION (Dkt. ##75, 77, 81, 82, 102, 118)

ANDREW P. GORDON, District Judge.

Plaintiff Joseph Piovo filed this lawsuit alleging that defendants conspired to fraudulently take possession of his home. Piovo's original complaint asserted only state law claims, so I dismissed it.[1] Piovo has now filed a second amended complaint asserting against all defendants a single claim under 42 U.S.C. § 1982, which creates a private cause of action for racial discrimination related to housing. Defendants have filed a number of motions to dismiss Piovo's newest complaint, arguing, among other things, that Piovo has failed to allege sufficient facts to state a federal claim or standing.[2]

Defendants are correct. Piovo fails to allege any facts in support of a racial discrimination claim under § 1982, and I am unable to discern any other adequately-alleged federal claim in his complaint. Because the complaint does not contain allegations giving rise to diversity jurisdiction, and it does not contain allegations giving rise to a federal claim, I have no subject matter jurisdiction over this case.

Additionally, Piovo alleges insufficient facts to establish standing. Piovo has brought this suit as a beneficiary to a trust. Generally, beneficiaries do not have standing to sue for harms to the trust, and Piovo provides few allegations indicating he has suffered any cognizable harm. Piovo's lack of standing is another grounds for dismissal.

Piovo has failed to adequately plead a federal claim despite being given three attempts, [3] and there is no reason to believe he has any valid federal claims to assert. I therefore grant defendants' motions to dismiss, and I do not grant Piovo leave to amend his complaint again.[4]

I. Legal Standard-Motion to Dismiss

A plaintiff must do two things in his complaint: (1) give the defendant fair notice of the basis for the court's jurisdiction, and (2) give the defendant fair notice of the factual basis of the claims asserted.[5]

A. Alleging sufficient facts to establish jurisdiction

"In this action, as in all actions before a federal court, the necessary and constitutional predicate for any decision is a determination that the court has jurisdiction-that is the power-to adjudicate the dispute."[6] The plaintiff is the party invoking the court's jurisdiction; as a result, the plaintiff bears the burden of proving that the case is properly in federal court.[7] Dismissal is appropriate if the complaint, considered in its entirety, fails to allege facts on its face that are sufficient to establish subject matter jurisdiction.[8] Subject matter jurisdiction exists either if the plaintiff alleges claims arising from federal law[9] or if the requirements of diversity are met.[10] Regardless of the arguments made by the parties, if I determine at any time that I lack subjectmatter jurisdiction I "must dismiss the action."[11]

B. Alleging sufficient facts to state a claim

In addition to providing sufficient allegations to support jurisdiction, a complaint must also provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief."[12] While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action."[13] "Factual allegations must be enough to rise above the speculative level."[14] Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face."[15]

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering a motion to dismiss. First, the court must accept as true all well-pleaded factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth.[16] Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice.[17] Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief.[18] A claim is facially plausible when the complaint alleges facts that allow the court to draw a reasonable inference that the Defendant is liable for the alleged misconduct.[19] Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged-but not shown-that the pleader is entitled to relief."[20] When the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed.[21]

II. DISCUSSION

Piovo alleges insufficient facts to establish either subject matter jurisdiction or standing. Either deficiency is ...


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