Razavi v. Coti et al

Filing 7

ORDER ADOPTING 4 REPORT AND RECOMMENDATION; AND DISMISSING COMPLAINT WITH LEAVE TO AMEND. Amended Pleading due by 9/21/2017. Signed by Judge Beth Labson Freeman on 8/22/2017. (blflc1S, COURT STAFF) (Filed on 8/22/2017)

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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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MELINA RAZAVI,
Plaintiff,

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Case No. 17-cv-04341-BLF

v.
CARLOS COTI, et al.,
Defendants.

ORDER ADOPTING REPORT AND
RECOMMENDATION; AND
DISMISSING COMPLAINT WITH
LEAVE TO AMEND
[Re: ECF 4]

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United States District Court
Northern District of California

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This action arises from a 2015 automobile accident between Plaintiff Melina Razavi and

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Defendant Carlos Coti. Compl., ECF 1. Razavi, proceeding pro se, filed the present complaint on

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July 31, 2017, alleging that although Coti admitted at the scene that the accident was his fault, he

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later lied and said that the accident was her fault. Id. at 1. Both Coti’s insurance company,

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Progressive, and Razavi’s own insurance company, Geico, have taken the position that Razavi was

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at fault rather than Coti. Id. at 2. Razavi sues Coti, Progressive, and Geico, as well as individual

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employees of Progressive and Geico. Her complaint is drafted in letter format, and does not

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contain subheadings identifying her claims. However, it appears from the text of the complaint

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that Razavi asserts state law claims for fraud and breach of contract. Razavi alleges federal

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jurisdiction based on diversity of citizenship, “because defendants do business out of state and

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have out of state locations, and this case is worth over $75,000.” Id. at 2.

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The case initially was assigned to Magistrate Judge Howard R. Lloyd. On August 2, 2017,

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Judge Lloyd issued a combined order which granted Razavi leave to proceed in forma pauperis,

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directed that the action be reassigned to a district judge, and included a Report and

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Recommendation (“R&R”) suggesting that the complaint be dismissed with leave to amend.

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R&R, ECF 4. The docket reflects that the R&R was served on Razavi by mail on August 2, 2017.

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Razavi thus was required to file any objections to the R&R on or before August 21, 2017. See

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Fed. R. Civ. P. 72(b)(2) (deadline for objection is fourteen days after service of report and

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recommendation); Fed. R. Civ. P. 6(d) (adding three days when a party must act within a specified

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time after being served with a document by mail). Razavi has not filed an objection.

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The Court finds the R&R to be correct, well-reasoned and thorough. In particular, the

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Court agrees with Judge Lloyd’s conclusion that the complaint does not establish diversity of

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citizenship because it does not allege the citizenship of each party and does not set forth facts

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showing damages in excess of $75,000. See Mellor v. W. Trop Storage, LLC, 672 F. App’x 708,

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709 (9th Cir. 2016) (“The district court properly dismissed Mellor’s action for lack of subject

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matter jurisdiction because Mellor failed to allege facts sufficient to show that the amount in

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controversy was satisfied.”); Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001)
(“Absent unusual circumstances, a party seeking to invoke diversity jurisdiction should be able to

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United States District Court
Northern District of California

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allege affirmatively the actual citizenship of the relevant parties.”). Because it is not clear that

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Razavi could not establish diversity of citizenship if given an opportunity to do so, the Court will

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grant leave to amend to cure the deficiencies identified above and in Judge Lloyd’s R&R. The

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Court notes that Razavi’s complaint states that she is disabled, expects to undergo surgery, and

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may find herself unable to litigate the case in the near future. Compl. at 3, ECF 1. For that

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reason, the Court will grant Razavi thirty days to amend her pleading rather than the fourteen days

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that she otherwise would be afforded.

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Accordingly, the Court:

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(1)

ADOPTS the R&R in its entirety;

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(2)

DISMISSES the complaint WITH LEAVE TO AMEND;

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(3)

ORDERS that any amended complaint be filed on or before September 21, 2017;
and

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(4)

ADVISES that the U.S. Marshal will not be directed to serve process on

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Defendants unless and until Razavi files a viable complaint establishing the

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existence of federal subject matter jurisdiction.

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IT IS SO ORDERED.
Dated: August 22, 2017

_____________________________________
BETH LABSON FREEMAN
United States District Judge
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