Ackers v. Yahoo Inc.

Filing 10

ORDER ADOPTING 8 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; GRANTING 2 PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS; DEFERRING SERVICE OF PROCESS BY THE UNITED STATES MARSHAL; AND DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Beth Labson Freeman on 11/18/2016. Amended Pleadings due by 12/19/2016. (blflc1S, COURT STAFF) (Filed on 11/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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GREGORY ACKERS,

Case No. 16-cv-05811-BLF

Plaintiff,
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v.
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YAHOO INC.,

United States District Court
Northern District of California

Defendant.
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ORDER ADOPTING MAGISTRATE
JUDGE'S REPORT AND
RECOMMENDATION; GRANTING
PLAINTIFF’S APPLICATION TO
PROCEED IN FORMA PAUPERIS;
DEFERRING SERVICE OF PROCESS
BY THE UNITED STATES MARSHAL;
AND DISMISSING COMPLAINT WITH
LEAVE TO AMEND
[Re: ECF 2, 8]

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Plaintiff Gregory Ackers, proceeding pro se, filed this action on October 7, 2016. He filed

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an application to proceed in forma pauperis on the same date. The case initially was assigned to

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Magistrate Judge Nathanael M. Cousins, who issued a Report and Recommendation (“R&R”)

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recommending that the application to proceed in forma pauperis be granted and that the complaint

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be dismissed with leave to amend following an initial screening pursuant to 28 U.S.C. § 1915(a).

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See R&R, ECF 8. The Certificate of Service docketed with the R&R shows that Plaintiff was

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served with the R&R by mail at his address of record. See COS, ECF 8-1. The case was

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reassigned to the undersigned judge. See Order Reassigning Case, ECF 7.

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Federal Rule of Civil Procedure 72(b)(2) provides that a party may file specific written

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objections to a magistrate judge’s recommended disposition of a case within fourteen days after

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being served with a copy of the recommended disposition. Fed. R. Civ. P. 72(b)(2). No

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objections to the R&R have been filed and the deadline to object has elapsed. Plaintiff filed a

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“Notice of Appearance” on November 2, 2016, but that notice gives no indication that Plaintiff

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intends to object to the R&R. See Pl.’s Notice of Appearance, ECF 9.
This Court agrees with Judge Cousin’s conclusion that Plaintiff has insufficient income

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and assets to pay the filing fee in this case, and on that basis it GRANTS Plaintiff’s application to

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proceed in forma pauperis. However, the Court will not order the United States Marshal to serve

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process on Defendant at this time given the Court’s determination that the complaint is subject to

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dismissal with leave to amend, as discussed below.

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The Court also agrees with Judge Cousin’s conclusions that Plaintiff has failed to allege

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facts sufficient to establish diversity jurisdiction or to state a viable federal claim, and that the

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complaint should be dismissed with leave to amend. Plaintiff asserts diversity jurisdiction under
28 U.S.C. § 1332, which confers federal subject matter jurisdiction over civil actions between

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United States District Court
Northern District of California

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“citizens of different States” where the amount in controversy exceeds $75,000. See 28 U.S.C. §

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1332(a). However, Plaintiff alleges that he resides in California and that Defendant Yahoo! Inc.

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maintains its corporate headquarters in California. A corporation is a citizen of the state where it

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has its principal place of business. 28 U.S.C. § 1332(c)(1). Consequently, it appears on the face

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of the complaint that there is no diversity of citizenship between Plaintiff and Defendant.

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Although Plaintiff does not assert federal question jurisdiction expressly in his complaint,

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Judge Cousins properly considered whether federal question jurisdiction exists under 28 U.S.C. §

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1331 given that the complaint contains two federal statutory claims. However, both of those

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claims are inadequate. Claim 1 for Computer Fraud & Abuse, asserted under 18 U.S.C. § 1030,

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consists of a single sentence that does not allege facts sufficient to state a claim under § 1030.

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Claim 2 for Wire Fraud, asserted under 18 U.S.C. § 1343, fails because there is no private civil

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right of action for violations of § 1343. See Valero v. Bac Home Loans Servicing, LP, No. 13-

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16163, 2016 WL 3450204, at *1 (9th Cir. June 23, 2016). Absent a viable federal claim, this

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Court declines to exercise supplemental jurisdiction over Plaintiff’s two state law claims. See

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Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“A district court ‘may decline

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to exercise supplemental jurisdiction’ if it ‘has dismissed all claims over which it has original

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jurisdiction.’”) (quoting 28 U.S.C. § 1367(c)(3)). Accordingly, the Court sua sponte DISMISSES

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THE COMPLAINT WITH LEAVE TO AMEND.
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ORDER

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IT IS HEREBY ORDERED that:

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(1)

The Court ADOPTS the R&R’s conclusions that Plaintiff’s application to proceed

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in forma pauperis should be granted and that the complaint should be dismissed

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with leave to amend;

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(2)

Plaintiff’s application to proceed in forma pauperis is GRANTED;

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(3)

Service of process by the United States Marshal is DEFERRED in light of the
dismissal of Plaintiff’s complaint;

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(4)

The complaint is DISMISSED WITH LEAVE TO AMEND;

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(5)

Any amended complaint shall be filed on or before December 19, 2016;

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United States District Court
Northern District of California

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(6)

Leave to amend is limited to the claims set forth in the complaint – Plaintiff may

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not add new claims or parties without obtaining leave of the Court.

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Dated: November 18, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge

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