Opinion
No. CV-18-3212-PHX-DMF
04-08-2019
James Shaffer, Plaintiff, v. Tri State Motor Transit, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR U.S. DISTRICT JUDGE:
This matter is before the Court on its own review. Plaintiff James Shaffer filed a pro se complaint (Doc. 1). Plaintiff consented to a magistrate judge (Doc. 7). Plaintiff also filed an Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2). On November 15, 2019, the Court granted Plaintiff in forma pauperis status and screened the Complaint pursuant to 28 U.S.C. § 1915(e)(2) (Doc. 9). The Court dismissed the Complaint for failure to allege sufficient basis for subject matter jurisdiction (Id.). The Court provided Plaintiff an opportunity to amend the complaint by no later than December 18, 2018 (Id.). On January 17, 2019, the Court reinstated Plaintiff's Complaint and extended the deadline to file an amended complaint (Doc. 12). The Court reinstated Plaintiff's Complaint because without appearances and consent of defendants, there was not full consent for undersigned to enter dispositive orders. See Williams v. King, 875 F.3d 500 (9th Cir. 2017). The deadline to file an amended complaint was later extended to March 10, 2019 (Doc. 15). Plaintiff did not file an amended complaint. Therefore, the Court recommends that the Complaint (Doc. 1) be dismissed without prejudice.
I. Screening/Review Pursuant to § 1915
Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). See also Lopez v. Smith, 203 F.3d 1122, 1126 fn. 7 (9th Cir. 2000) (28 U.S.C. § 1915(e) "applies to all in forma pauperis complaints," not merely those filed by prisoners). Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 8(a)(2) provides that a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that lacks such statement fails to state a claim and must be dismissed.
In determining whether a plaintiff fails to state a claim, the court assumes that all factual allegations in the complaint are true. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). However, "the tenet that a court must accept a complaint's allegations as true is inapplicable to legal conclusions [and] mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The pertinent question is whether the factual allegations, assumed to be true, "state a claim to relief that is plausible on its face." Id. (citing Twombly, 550 U.S. at 570).
Where a complaint contains the factual elements of a cause, but those elements are scattered throughout the complaint without any meaningful organization, the complaint does not set forth a "short and plain statement of the claim" for purposes of Rule 8, Federal Rules of Civil Procedure. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988). Further, a complaint may be dismissed where it lacks a cognizable legal theory, lacks sufficient facts alleged under a cognizable legal theory, or contains allegations disclosing some absolute defense or bar to recovery. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988); Weisbuch v. County of L.A., 119 F.3d 778, 783, fn. 1 (9th Cir. 1997).
To survive dismissal, a complaint must give each defendant "fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). In the absence of fair notice, a defendant "should not be required to expend legal resources to guess which claims are asserted against her or to defend all claims 'just in case.'" Gregory v. Ariz. Div. of Child Support Enforcement, No. CV11-0372-PHX-DGC, 2011 WL 3203097, at *1 (D.Ariz. July 27, 2011).
Where the complaint has been filed by a pro se plaintiff, as is the case here, courts must "construe the pleadings liberally ... to afford the petitioner the benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Under the pleading standard set by the Supreme Court's decision in Iqbal, however, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Further, "[a] district court should not dismiss a pro se complaint without leave to amend unless 'it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'" Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per curiam)).
When the court dismisses the complaint of a pro se litigant with leave to amend, the "court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively." Id. (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). "Without the benefit of a statement of deficiencies, the pro se litigant will likely repeat previous errors." Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). The court should not, however, advise the litigant how to cure the defects; this type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004).
II. Deficiencies in the Complaint
This Court is a limited jurisdiction court; this federal court has no jurisdiction beyond that conferred upon it by statute. Brandt v. Bay City Super Mkt., 182 F.Supp. 937, 939 (N.D. Cal. 1960). Fed. R. Civ. P. 8(a)(1) requires that a complaint contain a "short and plain statement of the grounds for the court's jurisdiction." Further, the party asserting jurisdiction bears the burden of establishing jurisdiction. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). The United States Supreme Court has stated that a federal court must not disregard or evade the limits on its subject matter jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Thus, the Court is obligated to evaluate its subject matter jurisdiction in each case and to dismiss a case when such jurisdiction is lacking. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004); Fed. R. Civ. P. 12(h)(3).
Unlike state courts, federal courts only have jurisdiction over a limited number of cases, and those cases involve either a question of federal law (federal question jurisdiction) or a controversy between citizens of different states (diversity jurisdiction). See 28 U.S.C. §§ 1331, 1332. Plaintiff's complaint does not adequately allege subject matter jurisdiction as required by Rule 8(a)(1) of the Federal Rules of Civil Procedure. Plaintiff alleges that he is seeking judgment "in accordance with all local and federal law." This broad statement is inadequate to assert federal question jurisdiction.
The United States Code specifies the requirements for federal subject matter based on diversity in 28 U.S.C. §1332 (these are set forth in the Court's Order at Doc. 9). Yet, the Complaint does not address diversity of the parties, and no amended complaint has been filed. Further, the claims in the Complaint appear to be based on breach of contract, and asserted general damages in the complaint are $55,000, which is below the diversity jurisdiction threshold. See 28 U.S.C. §1332. While punitive damages over the diversity amount are alleged, under the law of most jurisdictions, punitive damages are not recoverable for breach of contract claims rather than tort claims. Thus, the Court will not consider such in determining whether the Complaint, on its face, establishes subject matter diversity jurisdiction.
In the Court's previous Orders, Plaintiff was given notice as to the deficiencies in the Complaint. Plaintiff was given ample time to file an amended complaint but has not done so.
Accordingly,
IT IS RECOMMENDED that the Complaint (Doc. 1) be dismissed without prejudice because the Complaint fails to establish this Court's subject matter jurisdiction.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 8th day of April, 2019.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge