Roberts et al v. Solari Enterprise Inc. et al

Filing 6

ORDER (1) Denying Motion to Proceed In Forma Pauperis; (2) Dismissing without Prejudice Plaintiffs' Complaint; and (3) Denying Motion to Appoint Counsel (ECF Nos. 1 , 2 , 3 ). IT IS HEREBY ORDERED that: 1. Plaintiffs' Motion to Proceed I FP (ECF No. 2 ) is DENIED; 2. Plaintiffs' Complaint is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction; 3. Plaintiffs' Motion to Appoint Counsel (ECF No. 3 ) is DENIED WITHOUT PREJUDICE as MOOT; and 4. Plaintiffs are G RANTED thirty (30) days from the date on which this Order is electronically docketed to file an amended complaint curing the deficiencies identified above. Signed by Judge Janis L. Sammartino on 1/6/2021. (All non-registered users served via U.S. Mail Service) (tcf)

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Case 3:20-cv-02476-JLS-BLM Document 6 Filed 01/06/21 PageID.24 Page 1 of 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 TINA LOUISE ROBERTS and TONY LEE-VANT WRIGHT, 15 ORDER (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS; (2) DISMISSING WITHOUT PREJUDICE PLAINTIFFS’ COMPLAINT; AND (3) DENYING MOTION TO APPOINT COUNSEL Plaintiffs, 13 14 Case No.: 20-cv-2476-JLS (BLM) v. SOLARI ENTERPRISE INC. and FEDEX.COM, 16 Defendants. (ECF Nos. 1, 2, 3) 17 18 19 Presently before the Court is Plaintiffs Tina Louise Roberts and Tony Lee-Vant 20 Wright’s Motion to Proceed In Forma Pauperis (“IFP”) (IFP Mot., ECF No. 2) and Motion 21 to Appoint Counsel (ECF No. 3). Plaintiffs appear to be asserting fraud and personal injury 22 claims stemming from Defendant Fedex.com’s alleged loss of a package. 23 IFP MOTION 24 All parties instituting any civil action, suit or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 /// 27 /// 28 /// 1 20-cv-2476-JLS (BLM) Case 3:20-cv-02476-JLS-BLM Document 6 Filed 01/06/21 PageID.25 Page 2 of 4 1 $400.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court 4 may authorize the commencement of an action without the prepayment of fees if the party 5 submits an affidavit, including a statement of assets, showing that she is unable to pay the 6 required filing fee. 28 U.S.C. § 1915(a). 7 Here, Plaintiff Tina Louise Roberts filed an affidavit stating that she has a monthly 8 income of $1,156, based off of disability disbursements and food stamps. (IFP Mot. at 2.) 9 The affidavit lists no other assets. (Id. at 3.) In juxtaposition, the affidavit indicates 10 Plaintiff has monthly expenses totaling $568.2 The amount of money Plaintiff Roberts 11 indicates she expects to continue to receive on a monthly basis exceeds her monthly debts 12 and obligations by more than $500. Additionally, Plaintiff states that she is owed $3,000. 13 (Id. at 2.) 14 Based on this information, the Court finds Plaintiffs have not shown they cannot pay 15 the court costs and still afford the necessities of life. The amount of money Plaintiff 16 Roberts indicates she expects to receive on a monthly basis exceeds her expected monthly 17 debts and obligations by enough that she could pay the one-time filing fee without 18 impacting her regular expenses. 19 Accordingly, the Court DENIES Plaintiffs’ Motion to Proceed IFP. 20 SUA SPONTE DISMISSAL FOR LACK OF JURISDICTION 21 Even if Plaintiffs were granted IFP status, however, the Court would dismiss the 22 Complaint for lack of subject matter jurisdiction. In the Complaint, Plaintiffs are asserting 23 24 25 26 1 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 2 27 28 The affidavit breaks down the monthly expenses as $200 for food; $150 for clothing; $20 for laundry and dry-cleaning; $18 for transportation; $20 for recreation; $125 for homeowner’s or renter’s insurance; and $35 for life insurance. (IFP Mot. at 4–5.) Combined, this amounts to $568—$588 less than Plaintiff indicates in the total monthly expenses column on the affidavit. 2 20-cv-2476-JLS (BLM) Case 3:20-cv-02476-JLS-BLM Document 6 Filed 01/06/21 PageID.26 Page 3 of 4 1 personal injury and fraud claims and seek $5,000 in damages. ECF No. 1-1. 2 Federal courts are courts of limited jurisdiction, and as such have an obligation to 3 dismiss claims for which they lack subject matter jurisdiction. Demarest v. United States, 4 718 F.2d 964, 965 (9th Cir. 1983). Federal courts are “obliged to inquire sua sponte 5 whenever a doubt arises as to the existence of federal jurisdiction.” Mt. Healthy City Sch. 6 Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations omitted). Federal district 7 courts “may not grant relief absent a constitutional or valid statutory grant of jurisdiction” 8 and are “presumed to lack jurisdiction in a particular case unless the contrary affirmatively 9 appears.” A–Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (internal quotations 10 omitted). Congress has conferred on the district courts original jurisdiction over both 11 federal question cases and diversity cases. Exxon Mobil Corp. v. Allapattah Serv., Inc., 12 545 U.S. 546, 552 (2005). Federal question cases are civil actions that arise under the 13 Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Diversity cases are 14 civil actions between citizens of different States; between U.S. citizens and foreign 15 citizens; or by foreign states against U.S. citizens which exceed a specific amount in 16 controversy, currently $75,000. Id. § 1332. 17 Here, Plaintiffs stated the basis of jurisdiction is a U.S. Government plaintiff. See 18 ECF No. 1-1. It appears from the Complaint that Plaintiffs are individuals suing in their 19 individual capacity. See generally Compl., ECF No. 1. No U.S. Government connection 20 is alleged. See generally id. Plaintiffs’ fraud and personal injury claims do not raise a 21 federal question because they do not arise under the Constitution, laws, or treaties of the 22 United States. Additionally, it is unclear from the Complaint whether the parties are 23 diverse, and the amount in controversy is only $5,000. See ECF No. 1-1. 24 In this case, Plaintiffs’ Complaint fails to invoke a federal question and Plaintiff has 25 not shown that diversity jurisdiction exists. Moreover, the United States is not a party to 26 this case. As a result, Plaintiffs have not presented a sufficient basis for federal jurisdiction 27 in this case. For these reasons, Plaintiffs’ Complaint is DISMISSED without prejudice. 28 /// 3 20-cv-2476-JLS (BLM) Case 3:20-cv-02476-JLS-BLM Document 6 Filed 01/06/21 PageID.27 Page 4 of 4 1 If Plaintiffs file a renewed IFP motion, they should also file an amended complaint clearly 2 stating the basis for this Court’s jurisdiction. 3 REQUEST FOR APPOINTMENT OF COUNSEL 4 Plaintiff also filed a request for appointment of counsel. (ECF No. 3.) Since the 5 Court dismissed Plaintiffs’ Complaint, the Court DENIES Plaintiffs’ request for 6 appointment of counsel as MOOT. 7 CONCLUSION 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiffs’ Motion to Proceed IFP (ECF No. 2) is DENIED; 10 2. Plaintiffs’ Complaint is DISMISSED WITHOUT PREJUDICE for lack of 11 12 subject matter jurisdiction; 3. 13 14 Plaintiffs’ Motion to Appoint Counsel (ECF No. 3) is DENIED WITHOUT PREJUDICE as MOOT; and 4. Plaintiffs are GRANTED thirty (30) days from the date on which this Order 15 is electronically docketed to file an amended complaint curing the deficiencies identified 16 above. 17 18 IT IS SO ORDERED. Dated: January 6, 2021 19 20 21 22 23 24 25 26 27 28 4 20-cv-2476-JLS (BLM)

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