Azubuko v. Chapski et al

Filing 10

ORDER denying 8 Motion for Reconsideration re 3 Order Dismissing Complaint. The case shall remain closed; no further filings will be accepted. Signed by Judge Michael M. Anello on 2/2/2012. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHUKWUMA E. AZUBUKO,

CASE NO. 11 CV 2522 MMA (BLM)
Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION

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[Doc. No. 8]

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vs.
ROBERT F. CHAPSKI; CYNTHIA M.
GARRATY,
Defendants.
Currently pending before the Court is Plaintiff’s motion for reconsideration of the Court’s

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November 16, 2011 Order denying his motion to proceed in forma pauperis, and dismissing his

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complaint with prejudice [Doc. No. 3]. For the reasons set forth below, the Court DENIES

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Plaintiff’s motion for reconsideration.

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BACKGROUND
On October 28, 2011, Plaintiff Chukwuma E. Azubuko, proceeding pro se, initiated this

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action by filing a complaint against Defendants Robert F. Chapski and Cynthia M. Garraty. [Doc.

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No. 1.] Plaintiff contemporaneously filed a motion for leave to proceed in forma pauperis (“IFP”).

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[Doc. No. 2.] On November 16, 2011, the Court issued an order denying Plaintiff’s motion to
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proceed IFP, dismissing the complaint as frivolous, and finding that the Court lacks subject matter

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jurisdiction over Plaintiff’s claims and venue is improper in the Southern District of California.

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[Doc. No. 3.] On January 4, 2012, Plaintiff filed the pending motion for reconsideration under

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Federal Rule of Civil Procedure 60(b).

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LEGAL STANDARD

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Rule 60(b) of the Federal Rules of Civil Procedure provides for reconsideration where one

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or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2)

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newly discovered evidence which by due diligence could not have been discovered before the

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court’s decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the

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judgment; (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. A Cand S

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Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Plaintiff moves for reconsideration under “Rule

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60(b)(4)(6).” [Doc. No. 8, p.4.]

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With respect to subparagraph (4), “[t]he Ninth Circuit has consistently held that a final

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judgment is void for purposes of Rule 60(b)(4) only if the court that considered it lacked

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jurisdiction, either as to the subject matter of the dispute or over the parties to be bound, or acted

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in a manner inconsistent with due process of law.” Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist.

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LEXIS 68560 *24 (E.D. Cal. June 27, 2011) (citing In re Sasson, 424 F.3d 864, 876 (9th Cir.

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2005) (quoting United States v. Berke, 170 F.3d 882, 883 (9th Cir. 1999)). “A judgment is not

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void within the meaning of Rule 60(b)(4) merely because it is erroneous.” Id. (citing In re Sasson,

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424 F.3d at 875). Under subparagraph (6), Plaintiff must show that there are extraordinary

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grounds justifying relief; mere dissatisfaction with the court’s order or belief that the court is

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wrong in its decision are not adequate grounds for relief. Twentieth Century -- Fox Film Corp. v.

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Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981).
DISCUSSION

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I.

RECONSIDERATION OF PLAINTIFF’S IFP STATUS IS NOT WARRANTED
Plaintiff first urges the Court to reconsider its denial of his motion to proceed IFP on the

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ground that individuals should not be denied access to the Courts solely because they are unable to

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pay the filing fee. [Doc. No. 8, p.4.] Contrary to Plaintiff’s suggestion, he was not denied access
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to the Court because he is unable to pay. Rather, the Court carefully considered Plaintiff’s motion

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to proceed IFP and determined it was incomplete, and that Plaintiff failed to demonstrate he lacked

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the financial resources to pay the filing fee. [Doc. No. 3, p.2.]

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As stated in the Court’s challenged order, a party need not be completely destitute to

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proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40

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(1948). However, proceeding IFP is a privilege, not a right. Smart v. Heinze, 347 F.2d 114, 116

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(9th Cir. 1965). “[T]he same even-handed care must be employed to assure that federal funds are

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not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a

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suitor who is financially able, in whole or in material part, to pull his own oar.” Temple v.

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Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Plaintiff’s motion for reconsideration does not

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challenge the Court’s analysis of his financial resources, nor provide any additional information

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that might warrant a different result. Accordingly, reconsideration of the Court’s order denying

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Plaintiff’s motion to proceed IFP is not appropriate under Rule 60(b)(4) or (b)(6).

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However, even if the Court granted Plaintiff’s request to proceed IFP, the action still could

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not proceed for at least three reasons, each of which the Court identified in its November 16 Order.

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First, Plaintiff’s complaint is frivolous, as it is entirely incomprehensible and does not state any

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claim upon which relief can be granted. Second, the complaint does not provide any legally

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cognizable ground for the Court to exercise jurisdiction over Plaintiff’s claims. Third, even if

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federal jurisdiction existed, venue is not proper in the Southern District of California. The Court,

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again, addresses each of these deficiencies below.

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II.

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PLAINTIFF’S COMPLAINT IS INCOMPREHENSIBLE
Plaintiff appears to dispute the Court’s conclusion that his complaint does not satisfy

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Federal Rule of Civil Procedure 8(a)(2), requiring a short and plain statement demonstrating he is

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entitled to relief. [Doc. No. 8, p.2.] Plaintiff also asserts he should have been given leave to

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amend. [Id.] The Court disagrees. Although the Court must construe a pro se litigant’s pleadings

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broadly, dismissal without leave to amend is appropriate where “it is absolutely clear that the

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deficiencies of the complaint could not be cured by amendment.” Franklin v. Murphy, 245 F.2d

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1221, 1228 n.9 (9th Cir. 1984). Just like his complaint, Plaintiff’s motion for reconsideration is
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almost entirely incomprehensible. For example, Plaintiff states: “The Court’s take vis-a-vis the

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sub-head was untrue! Should the Plaintiff shave his teeth for compliance?” [Id.] The Court is

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simply unable to decipher what type of relief Plaintiff seeks, or any facts evidencing that leave to

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amend would not be futile.

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In addition, the Court’s prior Order identified several pleading deficiencies beyond its

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Rule 8 concerns. [See Doc. No. 3, p.2-4.] The Court declines to reiterate that discussion here, as

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Plaintiff’s pending motion still fails to identify any facts or coherent theories of liability. It

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remains entirely unclear what kind of action Plaintiff desires to bring. Moreover, Plaintiff does

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not explain why reconsideration is appropriate, nor does he even attempt to identify facts that he

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could allege to cure the noted deficiencies in his complaint. Accordingly, the Court concludes it

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correctly dismissed Plaintiff’s complaint with prejudice and without leave to amend.

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Even if the Court could be persuaded that Plaintiff might be able to state a claim if granted

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leave to amend, Plaintiff’s claims cannot proceed in this Court because it lacks subject matter

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jurisdiction over this action. Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 94 (1998)

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(“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare

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the law, and when it ceases to exist, the only function remaining to the court is that of announcing

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the fact and dismissing the cause.”) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514

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(1868)).

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III.

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THE COURT LACKS SUBJECT MATTER JURISDICTION
Plaintiff asserts the Court should reconsider its conclusion that subject matter jurisdiction

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is lacking, and identifies several cases that purportedly demonstrate this Court can exercise

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jurisdiction over his claims. [Doc. No. 8, p.5-7.] Plaintiff’s references are entirely unhelpful, as

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they do not bear on the facts of this case. “Federal district courts are courts of limited jurisdiction,

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possessing only that power authorized by Constitution and statute. We presume that a cause lies

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outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party

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asserting jurisdiction.” K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1027 (9th Cir.

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2011) (citations and internal marks omitted). Neither Plaintiff’s complaint nor his motion for

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reconsideration state a legally cognizable ground for the Court to exercise jurisdiction over

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Plaintiff’s unintelligible allegations. Accordingly, reconsideration is not warranted.

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IV.

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VENUE IS NOT PROPER IN THE SOUTHERN DISTRICT OF CALIFORNIA
Lastly, even assuming federal jurisdiction existed, Plaintiff’s action still cannot proceed in

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this district. Neither Plaintiff’s complaint nor his motion for reconsideration identifies a single

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fact that suggests Plaintiff’s grievances have any connection to the Southern District of California.

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See generally, 28 U.S.C. § 1391. As stated previously, Plaintiff’s conclusory assertions that venue

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exists carry no weight. A careful review of the record reveals no discernable link to California, let

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alone the Southern District. [See Doc. No. 3, p.4 (“Defendants reside in Tennessee and

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Connecticut, and Plaintiff resides in Massachusetts . . . none of the parties reside in California, nor

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does it appear any discernable conduct occurred in this district”).] The Court therefore declines to

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reconsider its ruling that venue is improper.

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CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s motion for reconsideration.
[Doc. No. 8.] The case shall remain closed; no further filings will be accepted.
IT IS SO ORDERED.
DATED: February 2, 2012
Hon. Michael M. Anello
United States District Judge

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