                                                                           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                           NOT FOR PUBLICATION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


                                           2
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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