Fontanez v. Facebook Inc.

Filing 5

Order granting #2 Application to Proceed in Forma Pauperis, and ORDER TO SHOW CAUSE why complaint should not be dismissed. Response due October 8, 2021. Signed by Chief Magistrate Judge Joseph C. Spero on September 10, 2021. (jcslc2S, COURT STAFF) (Filed on 9/10/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)Copy placed in O:Drive on 9/10/2021. Modified on 9/10/2021 (klhS, COURT STAFF).

Case 3:21-cv-06920-JCS Document 5 Filed 09/10/21 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FERNANDO FONTANEZ,

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Plaintiff,

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v.

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FACEBOOK, INC.,

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Defendant.

United States District Court
Northern District of California

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Case No. 21-cv-06920-JCS
ORDER GRATING APPLICATION TO
PROCEED IN FORMA PAUPERIS
ORDER TO SHOW CAUSE WHY
CASE SHOULD NOT BE DISMISSED
Re: Dkt. Nos. 1, 2

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I.

Plaintiff Fernando Fontanez, pro se, has applied to proceed in forma pauperis. Dkt. 2.

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INTRODUCTION

Sufficient cause having been shown, that application is GRANTED.
The Court now reviews the sufficiency of Fontanez’s complaint against Defendant

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Facebook Inc. under 28 U.S.C. § 1915(e)(2)(B). For the reasons discussed below, Fontanez is

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ORDERED TO SHOW CAUSE why this case should not be dismissed, by filing a response to this

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order no later than October 8, 2021. If Fontanez does not respond to this order by that date, the

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case will be reassigned to a United States district judge with a recommendation that it be

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dismissed with prejudice.

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II.

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THE COMPLAINT
Fontanez alleges that Facebook disabled his account, failed to send SMS access codes to

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his phone, and has not responded to his request to meet with a Facebook representative to discuss

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fraud purportedly perpetrated on Facebook and the possibility of a one-percent reward to Fontanez

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for bringing that issue to Facebook’s attention. Compl. (dkt. 1). He asserts a claim for breach of

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contract. Id. He attaches to his complaint a number of communications he sent to Facebook and

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others detailing his theories of a widespread conspiracy of fraud. See dkt. 1-2.

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III.

ANALYSIS

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A.

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

Legal Standard for Review Under § 1915

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

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(1) 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). Rule 8(a)(2) of the Federal Rules of Civil

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

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

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United States District Court
Northern District of California

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and must be dismissed.
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 to “mere conclusory statements.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading

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that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action

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will not do.’” Id. (quoting Twombly, 550 U.S. at 555). The pertinent question is whether the

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factual allegations, assumed to be true, “state a claim to relief that is plausible on its face.”

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Twombly, 550 U.S. at 570.

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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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B.

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Fontanez does not specify the law he believes applies to his claim for breach of contract.

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Breach of Contract

Under California law, the “cause of action for damages for breach of contract is comprised of the
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following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance,

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(3) defendant’s breach, and (4) the resulting damages to plaintiff.” Armstrong Petroleum Corp. v.

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Tri-Valley Oil & Gas Co., 116 Cal. App. 4th 1375, 1391 n.6 (2004).
Fontanez’s complaint includes the following passage, which addresses those elements in a

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cursory manner:

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Plaintiff seeks $20,000.00 in damages as Plaintiff did have a legal
binding contract with Defendant Plaintiffs performance is noted on
Defendants Facebook page with breach on Defendants part and
damage to Plaintiff in a scheme of identity theft to steal (by murder
of Plaintiff) Plaintiffs naming rights worth billions, and deny Plaintiff
life, liberty and the pursuit of the American dream despite Plaintiffs
life works to get the world and Americans monies illegally deprived
of all by communists.

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United States District Court
Northern District of California

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Compl. at 2–3. He asserts no basis for liability other than breach of contract.
Under Iqbal, this sort of “‘formulaic recitation of the elements of a cause of action will not

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do.’” 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Fontanez has not explained what the

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terms of his alleged contract with Facebook were, how he performed under the contract, what

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aspect of Facebook’s conduct or inaction breached the contract, or how Facebook’s purported

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breach damaged Fontanez or had any relationship to a scheme of identity theft and murder (which

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is in turn also not explained with any factual allegations). The attachments to his complaint do not

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provide any clear answers to these questions.
Fontanez is therefore ORDERED TO SHOW CAUSE why his complaint should not be

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dismissed under 28 U.S.C. § 1915(e)(2)(B) for failure to include sufficient factual allegations to

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state a plausible claim on which relief may be granted.

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IV.

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CONCLUSION
For the reasons discussed above, Fontanez is ORDERED TO SHOW CAUSE why this

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case should not be dismissed for failure to state a claim on which relief may be granted, by filing

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no later than October 7, 2021 either: (1) an amended complaint; or (2) a response arguing why his

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current complaint is sufficient.

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Any amended complaint must include the caption and civil case number used in this order
(21-cv-06920) and the words FIRST AMENDED COMPLAINT on the first page. Because an
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amended complaint completely replaces the previous complaint, any amendment may not

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incorporate claims or allegations of Fontanez’s original complaint by reference, but instead must

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include all of the facts and claims Fontanez wishes to present and all of the defendants he wishes

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to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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IT IS SO ORDERED.
Dated: September 10, 2021
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JOSEPH C. SPERO
Chief Magistrate Judge

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United States District Court
Northern District of California

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