Smith v. Bank of America, N.A.

FILED
NOT FOR PUBLICATION
FEB 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORA SMITH, individually, and on No. 15-55674
behalf of the class of all others similarly
situated; CYNTHIA HIMPLE, D.C. No.
individually, and on behalf of the class of 2:14-cv-06668-DSF-PLA
all others similarly situated,
Plaintiffs-Appellants, MEMORANDUM*
v.
BANK OF AMERICA, N.A., a national
banking association,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted February 13, 2017**
Pasadena, California
Before: D.W. NELSON, TALLMAN, and N.R. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiffs Lora Smith and Cynthia Himple appeal the district court’s order
dismissing their putative class action under Fed. R. Civ. P. 12(b)(6). Because we
conclude that the district court lacked subject matter jurisdiction, we vacate the
district court’s order and remand with instructions to dismiss the case under Fed.
R. Civ. P. 12(b)(1).
We determine the existence of subject matter jurisdiction de novo. Harden
v. Roadway Package Sys., Inc., 249 F.3d 1137, 1140 (9th Cir. 2001). Article III of
the Constitution “limits the jurisdiction of federal courts to ‘Cases’ and
‘Controversies.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992) (quoting
U.S. Const. art. III, § 1). “[T]he irreducible constitutional minimum of standing
contains three elements[:]” (1) injury-in-fact, (2) causation, and (3) redressability.
Id. at 561-62.
Here, Plaintiffs fail to allege injury-in-fact via “an invasion of a legally
protected interest which is . . . concrete and particularized” and “actual or
imminent.” Id. at 561 (internal quotation marks and citations omitted). Although
Plaintiffs allege that Bank of America, N.A. (“BofA”) provided them with a Form
1098 that did not comply with the requirements of 26 U.S.C. § 6050H, Plaintiffs
do not allege that they filed erroneous tax returns in reliance on the allegedly
erroneous form or received a smaller tax deduction as a result. Mere receipt of an
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erroneous form, without more, is insufficient to establish injury-in-fact. See
Gonzales v. Gorsuch, 688 F.2d 1263, 1269 (9th Cir. 1982); see also Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1549-50 (2016). Because Plaintiffs failed to establish
Article III standing, the district court lacked subject matter jurisdiction and was
required to dismiss on that ground. See Steel Co. v. Citizens for a Better Env’t ,
523 U.S. 83, 94 (1998) (rejecting the doctrine of hypothetical jurisdiction).
For this reason, we vacate the district court’s order and instruct the district
court to dismiss the case under Fed. R. Civ. P. 12(b)(1). We also note that,
whenever a district court dismisses a case, it “should grant leave to amend even if
no request to amend the pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203
F.3d 1122, 1130 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995)).
Finally, we DENY the parties’ requests for judicial notice at ECF No. 12
and ECF No. 21 as moot.
Each party shall bear its own costs on appeal.
VACATED and REMANDED.
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