Wright v. Solomon

Filing 9

ORDER dismissing 1 Complaint pursuant to 28 U.S.C. § 1915. Amended complaint due January 22, 2015. Signed by Judge Joseph C. Spero on December 8, 2014. (jcslc2, COURT STAFF) (Filed on 12/8/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LATISHA WRIGHT,

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Case No. 14-cv-04500-JCS

Plaintiff,
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v.
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TROY SOLOMON,

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Defendant.

ORDER DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915 WITH
LEAVE TO AMEND
Re: Dkt. No. 1

United States District Court
Northern District of California

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I.

INTRODUCTION
Plaintiff Latisha Wright filed this action against Defendant Troy Solomon after Solomon

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allegedly failed to deliver products that Wright purchased from him. The Court previously

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granted Wright‟s application to proceed in forma pauperis, thus requiring the Court to review the

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sufficiency of Wright‟s Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Because no basis for

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federal subject matter jurisdiction is apparent, Wright‟s Complaint is DISMISSED with leave to

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amend.1 If Wright chooses to amend, she must file an amended complaint no later than January

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22, 2015. Wright must also attend the case management conference scheduled for 2:00 PM on

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January 16, 2015 in Courtroom G, located on the 15th floor of the San Francisco courthouse at

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450 Golden Gate Avenue.

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II.

BACKGROUND

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A.

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Wright filed her Complaint using a template prepared by the Justice & Diversity Center of

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the Bar Association of San Francisco. In the section labeled “Jurisdiction,” Wright checked a box

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to indicate that her “case belongs in federal court under diversity jurisdiction because none of the

The Complaint

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Wright has consented to the jurisdiction of the undersigned magistrate judge for all purposes
pursuant to 28 U.S.C. § 636(c).

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plaintiffs live in the same state as any of the defendants AND the amount of damages is more than

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$75,000.” Compl. ¶ 2. Wright lives in California; Solomon lives in Florida. Id. ¶ 1.

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The “Statement of Facts and Claims” alleges that Wright paid a total of $2,346.88 to

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Solomon in early 2014 to start a t-shirt business. Id. ¶ 5. Of that sum, Wright paid $1,662.88 for a

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design, $500 for a website, and $184 for twelve shirts. Id. She alleges that Solomon initially

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represented that all of the goods and services at issue could be provided within 72 hours, but, to

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date, none have been provided. Id. Wright alleges that in response to her repeated inquiries,

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Solomon has made excuses and told her that “it won‟t take much longer.” Id.

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B.

Procedural History

Wright filed her Complaint in this Court on October 8, 2014, and concurrently filed an

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United States District Court
Northern District of California

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application to proceed in forma pauperis (dkt. 2). The Court granted Wright‟s application to

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proceed in forma pauperis on October 22, 2014. See dkt. 4. Wright consented to the jurisdiction

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of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c) on December 3, 2014. See

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dkt. 7.

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III.

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ANALYSIS
A.

Legal Standard
Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave

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to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: (1)

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are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see

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Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2)

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provides that a pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” A complaint that lacks such statement fails to state a claim and must

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be dismissed.

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In determining whether a plaintiff fails to state a claim, the court assumes that all factual

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allegations in the complaint are true. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th

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Cir. 1995). However, “the tenet that a court must accept a complaint‟s allegations as true is

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inapplicable to legal conclusions [and] mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The pertinent

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question is whether the factual allegations, assumed to be true, “state a claim to relief that is

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plausible on its face.” Id. (citing Twombly, 550 U.S. at 570). Thus, to meet this requirement, the

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complaint must be supported by factual allegations. Id.

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Further, a complaint is “frivolous” under § 1915 where there is no subject matter

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jurisdiction. See Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987) (recognizing the general

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proposition that a complaint should be dismissed as frivolous under § 1915 where subject matter

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jurisdiction is lacking). Federal courts are courts of limited jurisdiction, and may only hear cases

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where Congress has granted jurisdiction by statute. Two of the most commonly invoked
jurisdictional statutes are 28 U.S.C. § 1332 (so-called “diversity jurisdiction”), and 28 U.S.C.

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United States District Court
Northern District of California

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§ 1331 (“federal question jurisdiction”). Section 1332 grants jurisdiction to hear cases where no

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plaintiffs are citizens of the same state as any defendants, and the amount in controversy is more

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than $75,000. See 28 U.S.C. § 1332. Section 1331 encompasses cases that arise under the

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Constitution, laws, or treaties of the United States. See 28 U.S.C. § 1331. “A case „arises under‟

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federal law either where federal law creates the cause of action or „where the vindication of a right

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under state law necessarily turns on some construction of federal law.‟” Republican Party of

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Guam v. Gutierrez, 277 F.3d 1086, 1088 (9th Cir. 2002) (citations omitted). “The presence or

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absence of federal-question jurisdiction is governed by the „well-pleaded complaint rule,‟ which

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provides that federal jurisdiction exists only when a federal question is presented on the face of the

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plaintiff‟s properly pleaded complaint.” Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183

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(9th Cir. 2002) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)).

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Where the complaint has been filed by a pro se plaintiff, as is the case here, courts must

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“construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v.

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Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). “A district court should not dismiss a

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pro se complaint without leave to amend unless „it is absolutely clear that the deficiencies of the

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complaint could not be cured by amendment.‟” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

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2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203−04 (9th Cir. 1988) (per curiam)).

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Further, when it dismisses the complaint of a pro se litigant with leave to amend, “the district court
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must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the

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litigant uses the opportunity to amend effectively.” Id. (quoting Ferdik v. Bonzelet, 963 F.2d

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1258, 1261 (9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant

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will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th

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Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)).

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B.

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Wright‟s Complaint invokes diversity jurisdiction under 28 U.S.C. § 1332(a). Although

The Amount in Controversy Is Not Sufficient to Invoke Diversity Jurisdiction

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Wright and Solomon appear to be citizens of different states—Wright a citizen of California, and

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Solomon a citizen of Florida—Wright‟s claim does not meet the amount in controversy required

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United States District Court
Northern District of California

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to invoke diversity jurisdiction.
The general rule to determine whether the amount in controversy is met is that “the sum

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claimed by the plaintiff controls if the claim is apparently made in good faith.” St. Paul Mercury

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Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938) (footnotes omitted). Wright‟s Complaint

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alleges that she paid Solomon $2,346.88 and states, “All I want is my money back.” Compl. ¶ 5.

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The amount in controversy is therefore $2,346.88, which does not meet the $75,000 requirement

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of § 1332(a). This Court therefore does not have jurisdiction under § 1332.

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C.

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Although the Complaint does not explicitly invoke federal question jurisdiction, the Court

The Complaint Does Not State a Federal Claim

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nevertheless considers whether it contains sufficient allegations to state a federal claim. See

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Johnson v. City of Shelby, 135 S. Ct. 346, 346 (2014) (“Federal pleading rules . . . do not

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countenance dismissal of a complaint for imperfect statement of the legal theory supporting the

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claim asserted.”); Hebbe, 627 F.3d at 342 (instructing courts considering pro se claims to

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“construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt.”).

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Wright‟s Complaint appears to be based essentially on breach of contract. She alleges that

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Solomon promised to provide goods and services in exchange for payment, but failed to perform

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on his promise after Wright paid him. See Compl. ¶ 5. Unless special circumstances apply,

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“[b]reach of [contract] is a cause of action under state, not federal, law.” See Morongo Band of

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Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1385−86 (9th Cir. 1988)
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(considering breach of a lease agreement). The claim therefore does not “aris[e] under the

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Constitution, laws, or treaties of the United States,” and thus does not fall within federal question

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jurisdiction. See 28 U.S.C. § 1331. Without any basis for federal jurisdiction, the Complaint must

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be dismissed.2
It is not absolutely clear, however, that breach of contract is the only claim available to

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Wright. This Court may not “dismiss [Wright‟s] pro se complaint without leave to amend unless

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„it is absolutely clear that the deficiencies of the complaint could not be cured by amendment,‟”

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Akhtar, 698 F.3d at 1212 (citation omitted). The Court therefore grants Wright leave to amend her

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Complaint if she is aware of facts supporting a plausible federal claim.

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IV.

For the reasons stated above, Wright‟s Complaint fails to demonstrate a basis for federal

United States District Court
Northern District of California

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CONCLUSION

subject matter jurisdiction, and is therefore DISMISSED with leave to amend.
If Wright is aware of facts supporting a federal claim and wishes to file an amended

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complaint, she may do so no later than January 22, 2015. The first amended complaint must

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include the caption and civil case number used in this Order (14-cv-04500-JCS) and the words

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FIRST AMENDED COMPLAINT on the first page. Because an amended complaint completely

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replaces the previous complaint, any amended complaint must include all the claims Wright

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wishes to present and all of the defendants she wishes to sue. See Ferdik v. Bonzelet, 963 F.2d

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1258, 1262 (9th Cir. 1992). An amended complaint may not incorporate material from the prior

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complaint by reference, and must address the deficiencies discussed above.
Wright is encouraged to consult with the Federal Pro Bono Project‟s Legal Help Center in

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either of the Oakland or San Francisco federal courthouses for assistance if she continues to

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prosecute this action. The San Francisco Legal Help Center office is located in Room 2796 on the

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15th floor at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is located

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in Room 470-S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments can be

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made by calling [phone] or signing up in the appointment book located outside either

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Because this Court lacks jurisdiction over Wright‟s Complaint, the Court does not reach the issue
of whether it adequately pleads a state-law claim for breach of contract.
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office. Lawyers at the Legal Help Center can provide basic assistance to parties representing

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themselves but cannot provide legal representation.

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IT IS SO ORDERED.
Dated: December 8, 2014
______________________________________
JOSEPH C. SPERO
United States Magistrate Judge

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United States District Court
Northern District of California

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