Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kelly v. Alley Bank, Inc.

United States District Court, Ninth Circuit

October 15, 2013

STEPHEN KELLY, Plaintiff,
v.
ALLEY BANK, INC., Defendant.

ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

KEITH STRONG, Magistrate Judge.

SYNOPSIS

Mr. Kelly is suing Defendant Valley Bank for failing to honor checks written on a business checking account and credit line. He seeks leave to proceed in forma pauperis. As criminal charges have been filed against Mr. Kelly regarding the checks at issue, the Court must abstain from hearing Mr. Kelly's claims. Mr. Kelly's IFP motion is granted, but his case should be dismissed without prejudice.

JURISDICTION

Mr. Kelly filed this action in federal court, in the Helena Division of the District of Montana. (Doc. 2). Venue is proper as the alleged wrongs were committed in Lewis and Clark County, Montana. Local Rule 3.2(b)(1). The Court has personal jurisdiction over the parties, all of whom are found in Montana. Fed.R.Civ.P. 4(k)(1)(A); Mont. R. Civ. P. 4(b). Mr. Kelly attempts to allege a violation under 12 U.S.C. § 3420, invoking subject matter jurisdiction. 28 U.S.C. § 1331. The case was assigned to Hon. Donald W. Molloy, United States District Court Judge, and referred to the undersigned. Local Rule 72.2(a)(1).

MOTION TO PROCEED IN FORMA PAUPERIS

Mr. Kelly submitted a declaration sufficient to make the showing required by 28 U.S.C. §1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).

STATUS

As Mr. Kelly is proceeding in forma pauperis, his Complaint must be reviewed to determine if the allegations are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. If so, the Complaint must be dismissed. 28 U.S.C. § 1915(e)(2). This is the review.

STANDARDS

A. Stating a claim

A complaint must allege sufficient factual matter to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility is less than probability, but requires "more than a sheer possibility that a defendant has acted unlawfully." Id. Pleadings that are no more than conclusions are not entitled to the presumption of truth and may be disregarded. Id. at 679. A plaintiff must plead the essential elements of a claim to avoid dismissal for failure to state a claim. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

B. Leave to amend

The court liberally construes pro se pleadings. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). "Unless it is absolutely clear that no amendment can cure the defect... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.