Levy v. Public Storage Corporate

Filing 6

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/19/2013 GRANTING 2 Motion to Proceed IFP; RECOMMENDING that the 1 Complaint be dismissed without leave to amend. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AMANDA U. LEVY,

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No. 2:13-cv-1360 TLN AC PS

Plaintiff,
v.

ORDER AND

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PUBLIC STORAGE CORP.,

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Defendant.

FINDINGS & RECOMMENDATIONS

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Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to

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28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by

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Local Rule 72-302(c)(21).

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Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable

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to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma

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pauperis will be granted. 28 U.S.C. § 1915(a).

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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Plaintiff alleges that on June 30, 2013, she, a Nigerian-American, was promised a storage

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space for her over-sized suitcase at defendant’s facility in Los Angeles, California. When she

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appeared in person to claim the storage space, she accuses two “Spanish-American” female

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employees of defendant of breaching a contract, bullying her, defaming her, discriminating

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against her, humiliating her, sexually harassing her, and traumatizing her after plaintiff presented

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her personal identification card identifying her as disabled. As a result of these actions, plaintiff

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fell and injured her neck. Plaintiff then claims that these two female employees retaliated against

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plaintiff, as somehow evidenced by plaintiff being banned from entering the Central Library in

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Santa Monica, California.

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Plaintiff brings suit against defendant for breach of contract, bullying, defamation,

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discrimination, false imprisonment, retaliation, sexual harassment, and trauma. Plaintiff also

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claims that she was discriminated against in a place of public accommodation, in violation of 42

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U.S.C. § 12182. Plaintiff premises jurisdiction in this court on both diversity and subject matter

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jurisdiction. She seeks $10,000,000.00 in damages.

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Plaintiff alleges first that this court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.

Diversity Jurisdiction

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Compl. 3. Generally, in an action where subject matter jurisdiction is premised on the diversity

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statute, there must also be complete diversity of the parties, which means that all of the plaintiffs

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have a different state of citizenship than all of the defendants. See, e.g., Cook v. AVI Casino

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Enters., Inc., 548 F.3d 718, 722 (9th Cir. 2008) (“We have jurisdiction only if [plaintiff], a

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resident of California, has citizenship which is diverse from that of every defendant.”)

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Here, plaintiff alleges that the amount in controversy is $10,000,000.00. However, even

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accepting that rather conclusory allegation, plaintiff has not sufficiently alleged that the parties’

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citizenship is completely diverse. Specifically, she does not identify the state of residence for

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either herself or defendant. Without this information, plaintiff has failed to adequately establish

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diversity jurisdiction. See Marzan v. Bank of Am., 2010 WL 5110102, at *1 (D. Haw. Dec. 9,

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2010) (Kay, J) (“The party asserting diversity jurisdiction bears the burden of proof. Therefore, if

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the plaintiff makes no allegations in the complaint respecting the citizenship of the defendant(s)

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or the plaintiff(s), the district court cannot properly exercise diversity jurisdiction over the claim.”

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(citation omitted)).

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2.

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Even assuming that plaintiff was able to establish diversity jurisdiction or subject matter

Improper Venue

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jurisdiction in this court, the undersigned further finds that venue is not proper in this district.

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The federal venue statute requires that all civil actions filed in any district court be brought in “(1)

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a judicial district where any defendant resides, if all defendants reside in the same State, (2) a

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judicial district in which a substantial part of the events or omissions giving rise to the claim

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occurred, or a substantial part of property that is the subject of the action is situated, or (3) if there

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is no district in which an action may otherwise be brought as provided in this section, any judicial

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district in which any defendant is subject to the court's personal jurisdiction with respect to such

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action.” 28 U.S.C. § 1391(b).

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Plaintiff’s pleading makes clear that the Eastern District of California is not the proper

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venue in which to bring this case. The address listed for defendant (701 Western Avenue,

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Glendale, California 91202, see Compl. 1) is located in the Central District of California, and the

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alleged acts giving rise to the claim are all alleged to have occurred in Los Angeles, located in the
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Central District of California. See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986)

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(where all defendants resided in Alaska and “virtually all of the activity providing the basis of the

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complaint took place” there, district court properly concluded that it lacked venue). “The district

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court of a district in which is filed a case laying venue in the wrong division or district shall

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dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it

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could have been brought.” 28 U.S.C. § 1406(a). Given the allegations in the pleading, this matter

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should have been brought in the district where the defendant resides or in the district where the

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allegations supporting the cause of action occurred, not in the Eastern District of California.

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“Venue may be raised by the court sua sponte where the defendant has not filed a

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responsive pleading and the time to do so has not run,” see Lawrie v. Cline, No. 11-cv-1235 SBA

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(PR), 2011 WL 7121807, at *2 (N.D. Cal. Nov. 4, 2011) (unpublished) (transferring case at

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screening under 28 U.S.C. § 1915A(a)). Here, defendant has not filed a responsive pleading and

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the time for doing so has not run; service of the pleading has not been ordered and no answer is

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on file.

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Accordingly, pursuant to 28 U.S.C. § 1406(a) (court “shall dismiss” for improper venue),
the undersigned recommends that this case be dismissed.

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Moreover, the court notes that this complaint appears to be one of several hundred

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frivolous complaints that plaintiff has filed all over the country. See Ajuluchuku–Levy v.

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Schleifer, 2009 WL 4890768, at *7 (E.D.N.Y. Dec. 15, 2009) (“[A] survey of the dockets of the

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United States district courts reveals that as of the date of this Order, Plaintiff has commenced two

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hundred fifty-eight (258) actions in various district courts across the United States. Several

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district courts have noted that “the ‘overwhelming majority’ of cases filed by plaintiff have been

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totally without merit.”) (quoting Ajuluchuku v. Southern New England School of Law, 2006 WL

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2661232, at *3 (N.D. Ga. Sep. 14, 2006)). In light of plaintiff’s frivolous allegations herein, as

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well as her history of filing frivolous actions containing many of the same allegations, the court

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will recommend that this action be dismissed without leave to amend pursuant to 28 U.S.C.

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§ 1915(e)(2). Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While the court ordinarily

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would permit a pro se plaintiff to amend, leave to amend should not be granted where it appears
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amendment would be futile).
In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s application to
proceed in forma pauperis is granted; and
IT IS HEREBY RECOMMENDED that plaintiff’s complaint be dismissed without leave
to amend.
These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Plaintiff has an

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opportunity to oppose by filing objections to these findings and recommendations. Within

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fourteen days after being served with these findings and recommendations, she may file written

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objections with the court and serve all parties. Such documents should be titled “Objections to

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Magistrate Judge’s Findings and Recommendations.” Replies to the objection shall be served and

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filed within ten days after service of the objections. Failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. See generally Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: August 19, 2013

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