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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MARC OLIN LEVY,

Plaintiff,

v.

VISTA HOLDINGS, et al.,

Defendants.

Case No.17-cv-00409-JSC 

ORDER REVIEWING AMENDED 

COMPLAINT UNDER SECTION 1915 

AND DISMISSING CASE

Re: Dkt. No. 8

Plaintiff Marc Olin Levy, representing himself, brings this civil action against Defendant 

Vista Holdings / Cashnet USA.1 (Dkt. No. 1.) On January 27, 2017, the Court reviewed 

Plaintiff’s complaint pursuant to 28 U.S.C. § 1915 and dismissed the complaint with leave to 

amend for failure to allege a basis for subject matter jurisdiction. (Dkt. No. 5.) The Court 

concluded that Plaintiff failed to allege facts to support diversity jurisdiction—the basis alleged in 

his complaint—and noted that while there may be a basis for federal question jurisdiction, the 

“only cause of action that Plaintiff explicitly mentions is fraud, which is a state common law claim 

insufficient to invoke federal question jurisdiction.” (Id. at 3.) The Court ordered Plaintiff to file 

an amended complaint by March 2, 2017 and noted that failure to file an amended complaint by 

that deadline would result in dismissal for lack of subject matter jurisdiction. (Id. at 4.)

In response to that Order, Plaintiff filed a letter stating that he “ha[s] decided to change 

[his] case from a ‘Diversity of Citizenship’ case to a ‘Federal Question’ case” and clarifying that 

the sole claim he brings against Defendant is fraud. (Dkt. No. 8.) The Local Rules require that 

“[a]ny party filing . . . an amended pleading must reproduce the entire proposed pleading and may 

 

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Plaintiff has consented to this Court’s jurisdiction under 28 U.S.C. § 636(c). (Dkt. No. 3.)

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not incorporate any part of a prior pleading by reference.” N.D. Cal. Civ. L.R. 10-1. Thus, 

Plaintiff’s letter, which appears to rely on the factual allegations of his initial complaint, is 

improper. However, because Plaintiff is representing himself, the Court nevertheless construes the 

letter as an amended complaint incorporating the allegations of the initial complaint. So 

construed, Plaintiff still fails to establish a basis for subject matter jurisdiction. As the Court 

previously mentioned, fraud is a state common law claim insufficient to invoke subject matter 

jurisdiction as it does not “aris[e] under the Constitution, laws, or treatises of the United States.” 

28 U.S.C. § 1331.

Elsewhere, Plaintiff alleges that “[t]his is an obvious case of fraud and other crimes” and 

asks the Court to “inform [him] of the exact and specific crimes [Defendant] has committed 

against [him] in this case” because he is representing himself. (Dkt. No. 8.) Although the Court 

must read a pro se complaint liberally, even pro se plaintiffs must allege facts sufficient to provide 

fair notice to the defendant as to the nature of the plaintiff’s claims. See Ivey v. Bd. of Regents of 

Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The Court cannot divine those allegations and 

thus, the claims that follow, for a plaintiff. Moreover, to the extent that Plaintiff seeks to bring

claims for violations of federal criminal statutes—like mail or wire fraud, 18 U.S.C. §§ 1341, 

1343—and asks the Court to identify claims for violations of other statutes, such claims are not 

cognizable because plaintiff, as a private citizen, does not have standing to prosecute crimes. See, 

e.g., McDonald v. Lee, No. 2:15-cv-1256-KJM-KJN PS, 2015 WL 2758012, at *3 (E.D. Cal. Aug. 

11, 2015) (on Section 1915 review, dismissing the plaintiff’s claims for violation of federal 

criminal statutes for lack of standing).

Even if the Court were to assume that Plaintiff is proceeding under diversity jurisdiction, 

which he now expressly disclaims, the $75,000 amount in controversy is not met. See 28 U.S.C. 

§ 1332(a). While he demands $10,000,000.00 in his complaint, his claim arises from an $800 

loan. From the face of the complaint the Court can conclude to a legal certainty that there is less 

than $75,000 actually in controversy. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 402 

(9th Cir. 1996). Accordingly, diversity jurisdiction is not satisfied.

Generally, “[d]ismissal without leave to amend is improper unless it is clear . . . that the 

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complaint could not be saved by an amendment,” Moss v. U.S. Secret Serv., 572 F.3d 962, 972 

(9th Cir. 2009), and “a pro se litigant is entitled to notice of the complaint’s deficiencies and an 

opportunity to amend prior to dismissal of the action.” Lucas v. Dep’t of Corrs., 66 F.3d 245, 248 

(9th Cir. 1995). But “[t]he district court’s discretion to deny leave to amend is particularly broad 

where plaintiff has previously amended the complaint.” Cafasso, U.S. ex rel. v. Gen. Dynamics 

C4 Sys., 637 F.3d 1047, 1058 (9th Cir. 2011) (internal quotation marks and citations omitted). 

Here, the Court previously granted Plaintiff leave to amend and instructed Plaintiff regarding the 

subject matter jurisdiction deficiency. The Court specifically noted that fraud alone is not a 

sufficient basis for federal question jurisdiction, and the amended complaint fails to articulate any

other cognizable legal claims against Defendant that would give rise to federal question 

jurisdiction. And, as explained above, diversity jurisdiction is not available. The Court therefore 

finds that the deficiency in the amended complaint could not be cured by further amendment.

As Plaintiff has not established that the Court has subject matter jurisdiction over this 

action, the Court DISMISSES the case without prejudice to Plaintiff filing in state court. The 

Clerk of Court shall close the file.

IT IS SO ORDERED.

Dated: March 9, 2017

JACQUELINE SCOTT CORLEY

United States Magistrate Judge

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