Kemper v. California State University Sacramento

Filing 3

ORDER granting 2 Motion to Proceed IFP, signed by Magistrate Judge Allison Claire on 7/28/17. The complaint 1 is DISMISSED with leave to amend. Plaintiff may file an amended complaint within 30 days of the date of this order. Failure to comply with this order may result in a recommendation that this action be dismissed. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN KEMPER,

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No. 2:17-cv-0895 GEB AC PS

Plaintiff,
v.

ORDER

CALIFORNIA STATE UNIVERSITY,
SACRAMENTO,
Defendant.

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Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the

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undersigned by E.D. Cal. 302(c)(21). Plaintiff has filed a request for leave to proceed in forma

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pauperis (“IFP”) pursuant to 28 U.S.C. § 1915, and has submitted the affidavit required by that

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statute. See 28 U.S.C. § 1915(a)(1). The motion to proceed IFP will therefore be granted.

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I. SCREENING STANDARDS

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Granting IFP status does not end the court’s inquiry. The federal IFP statute requires

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federal courts to dismiss a case if the action is legally “frivolous or malicious,” fails to state a

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claim upon which relief may be granted, or seeks monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915(e)(2). Plaintiff must assist the court in determining

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whether or not the complaint is frivolous, by drafting the complaint so that it complies with the

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Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). Under the Federal Rules of Civil Procedure,
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the complaint must contain (1) a “short and plain statement” of the basis for federal jurisdiction

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(that is, the reason the case is filed in this court, rather than in a state court), (2) a short and plain

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statement showing that plaintiff is entitled to relief (that is, who harmed the plaintiff, and in what

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way), and (3) a demand for the relief sought. Fed. R. Civ. P. (“Rule”) 8(a). Plaintiff’s claims

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must be set forth simply, concisely and directly. Rule 8(d)(1).

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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). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327;

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Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010),

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cert.denied, 564 U.S. 1037 (2011).

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The court applies the same rules of construction in determining whether the complaint

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states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court

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must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must

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construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a

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less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520

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(1972). However, the court need not accept as true conclusory allegations, unreasonable

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inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618,

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624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice

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to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009). To state a claim on which relief may be granted, the plaintiff must

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allege enough facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at

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570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 556 U.S. at 678.

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A pro se litigant is entitled to notice of the deficiencies in the complaint and an

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opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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II. THE COMPLAINT
Plaintiff names California State University, Sacramento, as the sole defendant in this

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lawsuit. ECF No. 1 at 1. The complaint alleges a single state law claim for breach of contract.

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Id. at 1-2.

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Although plaintiff does not specify a basis for federal court jurisdiction, diversity

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jurisdiction can be inferred from the allegations of the complaint. 28 U.S.C. § 1332 provides for

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diversity of citizenship jurisdiction. A plaintiff properly invokes § 1332 jurisdiction “when she

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presents a claim between parties of diverse citizenship that exceeds the required jurisdictional

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amount, currently $75,000.” Arbaugh v. Y&H Corp,, 546 U.S. 500, 513 (2006); 28 U.S.C.

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§ 1332. Review of the court docket and the complaint reveals plaintiff is domiciled in Arizona.

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Plaintiff further asserts he “moved to Arizona in 1980 and has been there ever since.” ECF No. 1

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at 1 ¶ C. Although defendant does not affirmatively allege the citizenship of the defendant, it is

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reasonable to infer that the California State University, Sacramento, is a citizen of California.

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Furthermore, plaintiff’s assertion of damages in the amount of $500,010,000 is sufficient to

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satisfy the amount in controversy requirement. 28 U.S.C. § 1332(a). For screening purposes, the

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complaint is sufficient to establish the court’s jurisdiction.

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Plaintiff alleges that he was a student at the university for both his undergraduate and

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graduate studies. ECF No. 1 at 1 ¶ A. Upon completing his undergraduate studies he received

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both his diploma and transcripts. Id. After completing his graduate program, plaintiff requested

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from the university his “up-dated transcripts which would declare his graduate courses and date

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of their completion and date of acceptance of his thesis” as well as “his diploma displaying a

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Master’s Degree in Educational Technology.” Id. at 1 at 1 ¶ C. For the last 36 years, plaintiff has

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not been able to receive his transcript and diploma from the university despite writing, calling and

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receiving “assurances from the university” that the documents would be forwarded to plaintiff.

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Id. at 1 at 1 ¶ D. Plaintiff alleges a contract was entered into when he “sign[ed] with the
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university to attend” their school in exchange for a “timely consequence/receipt of transcripts and

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diploma.” Id. at 2. Plaintiff asserts these documents were to be to be issued by the university

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when plaintiff completed the requirements for his degree. Id. Plaintiff alleges that failure to

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produce the transcript and diploma resulted in a breach. Id. at 1-2. Consequently, plaintiff

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alleges he has suffered a “myriad [of lost] teaching opportunities because he was unable to

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provide [these] documents [to] prospective employers.” Id. at 1 at 1 ¶¶ D, F. As “relief,”

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plaintiff seeks “$10,000 general damages and $500,000,000 punitive damages for egregious

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behavior.” Id. at 2.

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California law of contracts applies in cases brought in the federal courts. See Klaxon

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Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). To state a claim for breach of contract

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under California law, a plaintiff must allege facts demonstrating: (1) the existence of a contract;

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(2) plaintiff’s performance of his contractual duties; (3) defendant’s failure to perform his

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contractual duties; and (4) the damage resulting to the plaintiff. Oasis West Realty, LLC. v.

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Goldman, 51 Cal.4th 811, 821 (2011); see also J&J Pumps, Inc. v. Star Ins. Co., 795 F. Supp. 2d

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1023, 1027 (E.D. Cal. 2011). The complaint before the court fails to state a claim because it does

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not set forth the nature of the purported contract, what duties the contact imposes on the parties,

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the date the contract was entered into, or any other relevant terms. Plaintiff neither specifies these

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essential facts in his complaint nor attaches a copy of the contract at issue. See N. Cty.

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Commc’ns Corp. v. Verizon Glob. Networks, Inc., 685 F. Supp. 2d 1112, 1122 (S.D. Cal. 2010)

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(“To sufficiently plead breach of contract under California law, the claimant must plead, among

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other things, the contract either ‘by its terms, set out verbatim in the complaint or a copy of the

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contract attached to the complaint and incorporated therein by reference, or by its legal effect.’”

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(internal citations omitted)).

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Plaintiff’s allegations related to the existence of a contract involve an “advertisement” and

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“solicit[ation]” of students “to attend [the] university” with “assur[ances]” that in attending the

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university, “[students] will have a timely consequence/receipt of transcripts and diploma.” ECF

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No. 1 at 1-2. These allegations are insufficient to support the existence of an oral or implied

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contract. See Khoury v. Maly’s of California Inc., 14 Cal. App. 4th 612, 616 (1993) (pleading
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requirements for oral contract); Silva v. Providence Hospital of Oakland, 14 Cal. 2d 762, 773

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(1939) (elements of implied contract). No advertisement or solicitation is provided in or attached

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to the instant complaint, nor are the specific contents of any advertisement or solicitation alleged.

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Accordingly, the existence of a contract cannot be determined. See Sinai Memorial Chapel v.

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Dudler, 231 Cal. App. 3d 190, 198 (1991) (general language in an advertisement does not create a

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contract); cf. Kirstein v. Bekins Van & Storage Co., 27 Cal. App. 586, 588 (1915) (customer’s

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reliance on advertisements specifically offering fireproof storage created implied contract to store

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goods in fireproof facility).

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In sum, plaintiff’s allegation that a contract existed is the kind of conclusory legal

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assertion that the court does not accept as true on screening. Because the complaint does not

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allege specific facts demonstrating the existence of a contract, the complaint is not sufficient to

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proceed. Although the complaint will be dismissed, plaintiff will be provided the opportunity to

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amend.

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III. AMENDING THE COMPLAINT

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The amended complaint must contain a short and plain statement of plaintiff’s claims.

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That is, it must state what the defendant did that harmed the plaintiff. The amended complaint

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must not force the court and the defendant to guess at what is being alleged against whom. See

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McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal of a complaint where

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the district court was “literally guessing as to what facts support the legal claims being asserted

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against certain defendants”). To the extent possible, plaintiff should provide the information

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identified as missing above.

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In setting forth the facts, plaintiff must not go overboard, however. He must avoid

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excessive repetition of the same allegations. He must avoid narrative and storytelling. That is,

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the complaint should not include every detail of what happened, nor recount the details of

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conversations (unless necessary to establish the claim), nor give a running account of plaintiff’s

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hopes and thoughts. Rather, the amended complaint should contain only those facts needed to

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show how the defendant legally wronged the plaintiff.

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Also, the amended complaint must not refer to a prior pleading in order to make plaintiff’s

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amended complaint complete. An amended complaint must be complete in itself without

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reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended

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complaint supersedes the original complaint. See Pacific Bell Telephone Co. V. Linkline

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Communications, Inc., 555 U.S. 438, 456 n.4 (2009)(“[n]ormally, an amended complaint

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supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice &

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Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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IV. PLAIN LANGUAGE SUMMARY FOR PRO SE PLAINTIFF
Your application to proceed in forma pauperis will be granted, but your complaint is being

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dismissed and you are being given an opportunity to submit an amended complaint within 30

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days. The amended complaint should include specific facts that demonstrate (1) the existence of

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a contract; (2) your performance of your contractual duties; (3) defendant’s failure to perform its

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contractual duties; and (4) the resulting damage to you. Facts relevant to the existence of a

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contract include (1) whether the contract was written, oral or implied; (2) if oral or implied, the

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specific facts, circumstances, communications and/or actions that you claim created the contract;

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(3) the date the contract was entered into; (4) the duties and obligations of you and the defendant

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under the contract; (5) what specific promises were made to you regarding receipt of your

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transcript and diploma; (6) other facts demonstrating the existence of the contract. An amended

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complaint should briefly provide the necessary information, following the directions above.

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V. CONCLUSION

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For the reasons explained above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is GRANTED;

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2. The complaint (ECF No. 1), is DISMISSED with leave to amend;

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3. Plaintiff may file an amended complaint within 30 days of the date of this order. If

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plaintiff files an amended complaint, he must comply with the instructions given above. If

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plaintiff fails to timely comply with this order, the undersigned mat recommend that this action be

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dismissed for failure to prosecute.
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4. Failure to comply with this order may result in a recommendation that this action be

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dismissed.

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DATED: July 28, 2017.

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