Tia v. Honolulu Police Department (HPD) et al

Filing 16

ORDER (1) DISMISSING AMENDED COMPLAINT IN PART; AND (2) TO SHOW CAUSE. Conclusion:"All claims against CoreCivic, Staggs, and Bird are DISMISSED without leave to amend. Federal claims against Walmart and Straight Talk are DISMISSED without leave to amend for failure to state a claim.Plaintiff is ORDERED to show cause why his state-law claims against Walmart and Straight Talk should not be dismissed for lack of diversity jurisdiction . That is, Plaintiff is ORDERED to file a statement by March 14, 2018, explaining how he could amend the existing Amended Complaint to establish diversity jurisdiction -- Plaintiff must set forth diversity of citizenship of all parties, and s how how he has incurred damages in excess of $75,000 as a result of Walmart's and Straight Talk's conduct.If Plaintiff fails to file a statement by March 14, 2018, or fails to show how he could amend to establish diversity jurisdi ction, the court will dismiss the remaining counts of the Amended Complaint for lack of subject-matter jurisdiction." IT IS SO ORDERED.Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 3/1/2018. (afc)CERTI FICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on March 2, 2018.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PETER R. TIA,

Civ. No. 17-00523 JMS-RLP
ORDER (1) DISMISSING
AMENDED COMPLAINT IN
PART; AND (2) TO SHOW CAUSE

Plaintiff,
vs.
CCA INC., ET AL.,
Defendants.

ORDER (1) DISMISSING AMENDED COMPLAINT IN PART; AND
(2) TO SHOW CAUSE
I. INTRODUCTION
On January 19, 2018, Plaintiff filed an Amended Complaint against
CoreCivic,1 CoreCivic employee Mark Staggs, Federal Bureau of Investigation
(“FBI”) agent Rachel Bird, Walmart Store, and Straight Talk. ECF No. 14.
Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition
without a hearing. For the reasons discussed below, the court (1) DISMISSES the
Amended Complaint in part pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a),

1

The Amended Complaint names CCA Inc. as a defendant, but because Corrections
Corporation of America (“CCA”) is now known as CoreCivic, the court uses its current name.
See United States v. Black, 2018 WL 398457, at *1 (D. Kan. Jan. 12, 2018) (recognizing name
change); see also McNary v. Corr. Corp. of Am., 2017 WL 5897401, at *1 n.1 (D.N.M. Nov. 28,
2017) (“CCA recently announced a corporate rebranding as CoreCivic.”) (internal citation
omitted).

and (2) ORDERS Plaintiff to show cause why his state-law claims should not be
dismissed for lack of diversity jurisdiction.
II. BACKGROUND
A.

The Complaint
On October 13, 2017, Plaintiff filed his original Complaint. ECF No.

1. Shortly thereafter, he filed applications to proceed in forma pauperis (“IFP”)
and for appointment of counsel. ECF Nos. 7-9. The Complaint alleged that on
September 23 and 24, 2017, Plaintiff purchased from Walmart a smart phone and a
30-day phone card with unlimited talk, text, and data, but he did not receive one
month of unlimited data. Compl. at 1-2. The remainder of the Complaint was a
confusing, incoherent narrative alleging in part that various federal and state law
enforcement and correctional entities in Hawaii and Tennessee, or their agents and
officers, are connected to a “homosexual mafia” that is out to harm Plaintiff
through (1) cutting off his data plan; (2) threatening to harm and arrest him rather
than enforce his contractual rights against Walmart; and (3) seeking to kill him. Id.
at 1-3. The Complaint asserted claims for “breach of duty,” breach of contract, and
“government corruption,” id., and it sought a “court investigation,” an injunction to
protect him “from all Defendants and their illegalities,” compensatory damages of
$4 million, and $1.5 million in punitive damages. Id. at 4.

2

On January 4, 2018, the court granted Plaintiff’s IFP motion,
dismissed his Complaint with leave to amend, and denied his motions for
appointment of counsel (the “January 4 Order”). ECF No. 13. The court
dismissed the Complaint for lack of subject-matter jurisdiction (failing to establish
diversity or federal question jurisdiction), as frivolous, for failure to state a claim,
and for violation of Federal Rules of Civil Procedure 18 (governing joinder of
claims) and 20 (governing joinder of parties). Id. at 8-13. The court granted
Plaintiff leave to amend, explaining that to state a 42 U.S.C. § 1983 claim, he must
allege “(1) that the conduct complained of was committed by a person acting under
color of state law; and (2) that the conduct deprived the plaintiff of a federal
constitutional or statutory right.” Id. at 11 (citation omitted). The January 4 Order
also explained that an Amended Complaint must contain:
short, plain statements telling the court: (1) the treaty,
constitutional right, or statutory right Plaintiff believes
was violated; (2) the specific basis of this court’s
jurisdiction; (3) the name of the defendant who violated
that right; (4) exactly what that defendant did or failed to
do; (5) how the action or inaction of that defendant is
connected to the violation of Plaintiff’s rights; and
(6) what specific injury Plaintiff suffered because of that
defendant’s conduct.
January 4 Order at 13. The court further explained that “Plaintiff should repeat this
process for each person or entity that he names as a defendant[, and that] . . . any
amended complaint must comply with Federal Rules of Civil Procedure 8, 18 and
3

20.” Id. 13-14. The court warned Plaintiff that “[i]f [he] fails to affirmatively link
the conduct of each named defendant with the specific injury he suffered, the
allegation against that defendant will be dismissed for failure to state a claim.” Id.
And finally, to assist Plaintiff to comply with the January 4 Order, the court
directed the Clerk of Court to mail a copy of the court’s approved non-prisoner
civil rights complaint form to Plaintiff. Id. at 17.
B.

The Amended Complaint
On January 19, 2018, Plaintiff filed an Amended Complaint alleging

that on September 23, 2017, he purchased a prepaid phone from Walmart and
Straight Talk for $31.29. Am. Compl. ¶ III.C, ECF No. 14. On September 24,
2017, he purchased a service plan that included one month of unlimited data for
$47.12, but the “data did not last more than a week.” Id. That is, “Walmart and
Straight Talk fraudulently advertised but did not fulfill agreed unlimited 1 months
data service!” Id. ¶ IV. As a consequence, Plaintiff allegedly suffered “8th, 14th”
Amendment injuries. Id. The Amended Complaint also alleges that “Plaintiff won
a state claim on this matter [in] case # 1CS17-1-3138.” Id.
The Amended Complaint further alleges claims against Defendants
CoreCivic, Staggs and Bird for “past troubles” alleged in a prior action in this
///
///
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district. The court takes judicial notice of that action 2 — Tia v. Staggs, et al., Civ.
No. 15-00159 DKW-BMK. 3 Specifically, the Amended Complaint alleges:
Plaintiff pursuant to cited laws and U.S. const.
deprivations sues defendants also Staggs and Bird due
past troubles in USDC Hon. CV 15-00159 DKW-BMK
reason for federal violations fraud, contractual breaches,
emotional harm and injury.
Am. Compl. ¶ V.
The Amended Complaint asserts claims pursuant to 42 U.S.C.
§ 1983 and/or Bivens 4 for violation of the First, Eighth, and Fourteenth
Amendments to the United States Constitution and for violation of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, as well as
state-law claims for breach of contract, fraud, and infliction of emotional distress.
Id. ¶¶ II, III.C, IV, V. The Amended Complaint seeks $1 million in compensatory
2

The court “may take [judicial] notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings have a direct relation to matters at
issue.” Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011); see also Lee v. City of L.A., 250
F.3d 668, 689-90 (9th Cir. 2001) (“A court may take judicial notice of matters of public record.”)
(citation and quotation marks omitted).
3

That action was filed while Plaintiff was incarcerated (in Hawaii at Halawa Correctional
Facility) and was dismissed pursuant to 28 U.S.C. 1915(g) because Plaintiff had accrued three
strikes and failed to show that he was in imminent danger of serious physical injury. See Tia v.
Staggs, et al., Civ. No. 15-00159 DKW-BMK (D. Haw. May 7, 2015) (citing cases). The
allegations in that Complaint are completely unrelated to the allegations asserted in this action
against Walmart and Straight Talk. See id. (alleging that a Japanese enterprise comprised of
numerous federal and state defendants conspired with other state and private defendants to deny
Plaintiff release from custody and interfere with his anti-global warming satellite invention).
4

“Bivens” references Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).
5

damages, $500,000 in punitive damages, and injunctive relief to prevent future
abuses. Id. ¶ V.
The Amended Complaint does not allege the parties’ citizenship, but
does list a Hawaii address for Plaintiff, Tennessee addresses for CoreCivic, Staggs
and Bird, and an Arkansas address for Walmart. Id. at 2-3. It does not list an
address for Straight Talk or provide any other information about the location of
each entity’s main office and principal place of business. Id.
C.

State-Court Action
The court also takes judicial notice of the state-court docket for Case

ID #1CS171003138, which shows that on October 27, 2017, Plaintiff filed an
action against Walmart. See http://hoohiki.courts.hawaii.gov/#/case?caseId=
1SC171003138 (last visited February 22, 2018). On November 22, 2017, the
parties settled Plaintiff’s claim for $47.12 — the exact amount of the alleged
defective phone service plan Plaintiff purchased from Walmart and/or Straight
Talk. See id. And on that same day, pursuant to the parties’ agreement, the statecourt case was dismissed with prejudice. Id.
III. STANDARDS OF REVIEW
The court must subject each civil action commenced pursuant to 28
U.S.C. § 1915(a) to mandatory screening, and order the dismissal of any claims it
finds “frivolous, malicious, failing to state a claim upon which relief may be
6

granted, or seeking monetary relief from a defendant immune from such relief.”
28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)
(en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the
court to dismiss sua sponte an in forma pauperis complaint that fails to state a
claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding
that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”). A
complaint “is ‘frivolous’ where it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[The] term ‘frivolous,’ . . .
embraces not only the inarguable legal conclusion, but also the fanciful factual
allegation.”).
In considering whether a complaint fails to state a claim, the court
must set conclusory factual allegations aside, accept non-conclusory factual
allegations as true, and determine whether these allegations state a plausible
claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of
Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). To state a claim, a
pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint that lacks a
cognizable legal theory or alleges insufficient facts under a cognizable legal
theory fails to state a claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
7

699 (9th Cir. 1990).
A district court may dismiss a complaint for failure to comply with
Rule 8 where it fails to provide the defendant fair notice of the wrongs allegedly
committed. See McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996)
(affirming dismissal of complaint where “one cannot determine from the
complaint who is being sued, for what relief, and on what theory, with enough
detail to guide discovery”). Rule 8 requires more than “the-defendantunlawfully-harmed-me accusation[s]” and “[a] pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not
do.” Iqbal, 556 U.S. at 678 (citations and quotations omitted). “Nor does a
complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (quotation signals omitted).
Plaintiff is appearing pro se; consequently, the court liberally
construes the Amended Complaint. See Erickson v. Pardus, 551 U.S. 89, 94
(2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam).
The court also recognizes that “[u]nless it is absolutely clear that no amendment
can cure the defect . . . a pro se litigant is entitled to notice of the complaint’s
deficiencies and an opportunity to amend prior to dismissal of the action.”
Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v.
8

Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).
IV. DISCUSSION
Construed liberally, Plaintiff’s Amended Complaint asserts claims for
violation of constitutional rights pursuant to 42 U.S.C. § 1983 and Bivens, a civil
RICO claim, and state-law claims. But the Amended Complaint again attempts to
join together unrelated incidents 5 and fails to correct defects identified in the
January 4 Order. The court addresses these points in turn.
A.

Improper Joinder of Claims and Parties
First, the Amended Complaint again improperly joins claims and

parties in violation of Rules 18 and 20. As this court explained previously:
Under Rule 18(a), governing joinder of claims, a plaintiff
may bring multiple claims, related or not, in a lawsuit
against a single defendant. To name different defendants
in the same lawsuit, however, a plaintiff must satisfy
Rule 20, governing joinder of parties. Under Rule
20(a)(2), permissive joinder of multiple defendants in a
single lawsuit is allowed only if: (1) a right to relief is
asserted against each defendant that relates to or arises
out of the same transaction or occurrence or series of
transactions or occurrences; and (2) any question of law
or fact common to all defendants will arise in the action.
5

In addition to Plaintiff’s continued violation of Rules 18 and 20 governing joinder of
claims and parties, Plaintiff recently filed a separate action also based at least in part on the same
or similar incidents alleged in Staggs. See Tia v. Honolulu Police Dep’t, et al., Civ. No. 1700607 DKW-KJM (D. Haw. Feb. 7, 2018) (finding that Plaintiff failed to state a claim based in
part on frivolous allegations of interference preventing Plaintiff from receiving proceeds for his
anti-global warming satellite invention). That case was summarily dismissed pursuant to the
court’s § 1915 screening. Id.
9

Unrelated claims involving different defendants belong
in different suits. See Woods v. City of L.A., 2017 WL
5634105, at *5 (C.D. Cal. Nov. 22, 2017) (citing George
v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)); Pitts v.
Tuitama, 2017 WL 1731681, at *4 (D. Haw. May 2,
2017) (citing cases).
January 4 Order at 12.
Here, the allegations related to the purchase of a phone and defective
service plan from Walmart and Straight Talk are completely unrelated to the “past
troubles” — concerning an alleged conspiracy to deny Plaintiff’s release from
incarceration and to interfere with Plaintiff’s anti-global warming satellite
invention — alleged in Staggs. Nor are all of the Defendants mutually responsible
for all the alleged incidents. Wrongdoing related to the defective phone service
plan is alleged against Walmart and Straight Talk, and unspecified “past troubles”
are alleged against CoreCivic, Staggs, and Bird. In short, the Amended Complaint
is based on incidents that do not arise from the same transaction or occurrence or
series of transactions or occurrences and that clearly involve separate acts done by
different groups of Defendants.
Under Rules 18 and 20, unrelated allegations against different
Defendants cannot be joined in the same action, but must be brought in separate
lawsuits. The court may sever misjoined parties as long as no substantial right is
prejudiced by such severance. See Owens v. Hinsley, 635 F3d 950, 952 (7th Cir.
10

2011); Coughlin v. Rogers, 130 F.3d 1348, 1350-51 (9th Cir. 1997). Because
Plaintiff has twice attempted to join these unrelated claims and parties, the court
finds it appropriate to sever Plaintiff’s claims against CoreCivic, Staggs, and Bird
from this action.
Thus, claims against CoreCivic, Staggs, and Bird are DISMISSED
without leave to amend.6
B.

Failure to State a Plausible Federal Claim for Relief
Second, the Amended Complaint fails to state a plausible federal

claim for relief against Walmart and Straight Talk.
1.

42 U.S.C. § 1983/Bivens Claims
Viewed liberally, the Amended Complaint alleges constitutional

injuries based on Walmart’s and Straight Talk’s failure to provide the phone
service data plan for which Plaintiff paid. See Compl. ¶¶ II.C., IV.
To sustain a civil rights action pursuant to 42 U.S.C. § 1983, a
plaintiff “must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct deprived the
plaintiff of a federal constitutional or statutory right.’” Hydrick v. Hunter, 500

6

Further, the Amended Complaint fails to state a claim against CoreCivic, Staggs, and
Bird. The Amended Complaint fails to allege any facts whatsoever against those Defendants —
at most, it alleges that Staggs and Bird are being sued for “past troubles” referenced in Staggs, a
separate lawsuit that was dismissed in 2015.
11

F.3d 978, 987 (9th Cir. 2007) (citation omitted), vacated and remanded on other
grounds, 556 U.S. 1256 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988); 42
U.S.C. § 1983.
Here, neither Walmart nor Straight Talk is alleged to be a state actor.
Rather, they are private entities. See Shelton v. Crookshank, 2018 WL 527423, at
*5 (N.D. W.Va. Jan. 24, 2018) (dismissing § 1983 claims against Walmart
employees because “Walmart . . . [is a] private entit[y] and [its] employees are not
acting under color of . . . state law”); TracFone Wireless, Inc. v. Hernandez, 196 F.
Supp. 3d 1289, 1296 (S.D. Fla. 2016) (finding that “TracFone” does business
under the “Straight Talk” brand); King v. TracFone Wireless, Inc., 2009 WL
198001, at *1 (N.D. Ind. Jan. 26, 2009) (recognizing that “TracFone [is] a private
company”).
A private party may, under limited circumstances, act under color of
state law when “he is a willful participant in joint action with the State or its
agents.” Dennis v. Sparks, 449 U.S. 24, 27 (1980); Franklin v. Fox, 312 F.3d 423,
445 (9th Cir. 2002). To establish joint action, a plaintiff must show willful, joint
participation between the state and a private actor in which “the state has so far
insinuated itself into a position of interdependence with the private [actor] that it
must be recognized as a joint participant in the challenged activity. This occurs
when the state knowingly accepts the benefits derived from unconstitutional
12

behavior.” Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 926 (9th
Cir. 2011) (citations and quotations omitted).
Plaintiff has failed to state a § 1983 claim because the Amended
Complaint fails to allege any facts showing what state action was taken or that
Walmart or Straight Talk is a state actor. Similarly, Plaintiff may have been
attempting to assert a Bivens claim against Bird, but nothing in the Amended
Complaint allows the court to infer that Walmart or Straight Talk is a federal
actor. See Ziglar v. Abassi, 137 S. Ct. 1843, 1854-58 (2017) (recognizing that
Bivens provides an implied damages remedy for limited constitutional violations
by federal actors). Thus, Plaintiff fails to state a Bivens claim.
Moreover, even though Plaintiff vaguely asserts a violation of his
First, Eighth, and Fourteenth Amendment rights, he provides no facts to support
such claims. The only facts alleged in the Amended Complaint relate to the
purchase of a phone and defective service plan from Walmart and/or Straight
Talk. Without more, the court cannot discern how these facts relate to the
deprivation of any constitutionally protected rights.
In sum, the Amended Complaint fails to state a plausible § 1983 or
Bivens claim for relief. And because it does not appear that Plaintiff could

13

possibly amend to state a plausible § 1983 or Bivens claim against Walmart or
Straight Talk, these claims are DISMISSED without leave to amend.
2.

RICO Claim
To the extent Plaintiff asserts that the facts alleged support a federal

civil RICO claim, he is mistaken. To allege a federal civil RICO claim, Plaintiff
must establish: “(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity, and additionally must establish that (5) the defendant caused
injury to plaintiff’s business or property.” Chaset v. Fleer/Skybox Int’l, LP, 300
F.3d 1083, 1086 (9th Cir. 2002) (citing 18 U.S.C. §§ 1962(c), 1964(c)); see also 18
U.S.C. § 1961. The Amended Complaint does not sufficiently plead any of these
elements. See Graf v. Peoples, 2008 WL 4189657, at *6 (C.D. Cal. Sept. 4, 2008)
(“Plaintiff does not expressly identify any RICO predicate acts, but simply
incorporates his previous allegations. Such ‘shotgun’ pleading is insufficient to
plead a RICO claim.”) (citing Savage v. Council on American-Islamic Relations,
Inc., 2008 WL 2951281, at *14 (N.D. Cal. July 25, 2008) (finding that a RICO
claim was insufficient where plaintiff set forth a “redundant narrative of allegations
and conclusion of law, but [made] no attempt to allege what facts [were] material
to his claims under the RICO statute, or what facts [were] used to support what
claims under particular subsections of RICO”)).

14

Any attempt to amend the RICO claim against Walmart and Straight
Talk would be futile. Thus, the RICO claim is DISMISSED without leave to
amend.
C.

Jurisdictional Issues
A federal court has subject-matter jurisdiction either through diversity

jurisdiction pursuant to 28 U.S.C. § 1332 or through federal question jurisdiction
pursuant to 28 U.S.C. § 1331. See January 4 Order at 8-9; Peralta v. Hispanic
Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005). As set forth below, the Amended
Complaint fails to assert subject-matter jurisdiction.
1.

Federal Question Jurisdiction
In order to establish federal-question jurisdiction, Plaintiff must do

more than merely assert that his claims arise under federal law — he must also
allege facts that are sufficient to state a plausible claim under that federal law. See
McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178 , 189 (1936)
(explaining that a plaintiff “must allege in his pleading the facts essential to show
jurisdiction. . . . [J]urisdiction may [not] be maintained by mere averment”). As
set forth above, Plaintiff’s federal claims are dismissed with prejudice based on
Plaintiff’s inability to allege facts supporting those claims. Thus, Plaintiff failed to
establish federal question jurisdiction.

15

2.

Diversity Jurisdiction
A plaintiff may invoke the court’s “diversity jurisdiction,” which

applies “where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between . . . citizens of different States.” 28
U.S.C. § 1332(a)(1) (emphasis added). To premise jurisdiction on diversity, the
complainant must allege both diversity of citizenship and the proper amount in
controversy. Naffe v. Frey, 789 F.3d 1030, 1039 (9th Cir. 2015); Rilling v.
Burlington N. R.R. Co., 909 F.2d 399, 400-01 (9th Cir. 1990). There must be
complete diversity of citizenship between the opposing parties — in other words,
Plaintiff must be a citizen of a different state than all of the defendants. See, e.g.,
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005); Morris v.
Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). A corporation is
considered a citizen of both the state in which it is incorporated and the state in
which it has its principal place of business. 28 U.S.C. § 1332(c)(1).
a.

Diversity of citizenship

Here, the Amended Complaint does not contain any factual
allegations concerning the citizenship of any party. It provides a Hawaii address
for Plaintiff and an Arkansas address for Walmart, but it does not specify whether
Walmart is incorporated in Arkansas or whether the address provided is of its
principal place of business. And there is no information at all about Straight Talk’s
16

state(s) of incorporation and principal place of business. Thus, the Amended
Complaint fails to establish diversity jurisdiction.
b.

Amount in controversy

To determine whether a complaint meets § 1332(a)’s amount in
controversy requirement, the court applies the “legal certainty” test. See Naffe, 789
F.3d at 1039 (citing Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d
362, 363-64 (9th Cir. 1986) (adopting the “legal certainty” test)). Under this test,
“the sum claimed by the plaintiff controls if the claim is apparently made in good
faith. It must appear to a legal certainty that the claim is really for less than the
jurisdictional amount to justify dismissal.” Id. at 1040 (quotoing St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283-288-89 (1938)). That is, where a
“complaint affirmatively alleges that the amount in controversy exceeds the
jurisdictional threshold . . . the district court must accept the amount in controversy
claimed by the plaintiff unless it can declare to a legal certainty that the case is
worth less.” Id. at 1040 (citing St. Paul Mercury Indem. Co., 303 U.S. at 288-89).
Here, the Amended Complaint does not affirmatively allege damages,
or a basis for damages, beyond the $47.12 for the allegedly defective phone service
plan and possibly $31.29 for the cost of a phone. See Compl. ¶ III.C. There are no
other factual allegations of injury or damage. Rather, Plaintiff simply seeks an
award of $1.5 million to remedy both the state-law claims against Walmart and
17

Straight Talk and the dismissed federal claims. See id. ¶ V. As alleged, Plaintiff’s
claims against Walmart and Straight Talk arise from a possible contract dispute
worth, at most, $78.41. And Plaintiff settled a claim arising from this same dispute
against Walmart in state court for $47.12. See http://hoohiki.courts.hawaii.gov/#/
case?caseId=1SC171003138. That is, Plaintiff obtained an agreement from
Walmart to compensate him for the amount he paid for the phone service plan to
settle a state-court claim. Based on these facts, Plaintiff’s prayer for damages of
$1.5 million does not appear to be made in good faith. The court finds it
inconceivable that Plaintiff could assert a basis for damages in excess of $75,000
on his claims against Walmart and Straight Talk. In short, the court is inclined to
find to a legal certainty that Plaintiff’s claims are worth less than the jurisdictional
amount.
Nevertheless, out of an abundance of caution, the court grants Plaintiff
leave to file a statement by March 14, 2018 explaining how he could amend to
establish diversity jurisdiction. To be clear, Plaintiff is not given leave to file an
amended complaint. Instead, he may file a statement by March 14, 2018
explaining how he could amend his existing Amended Complaint to establish
diversity jurisdiction.
///
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V. CONCLUSION
All claims against CoreCivic, Staggs, and Bird are DISMISSED
without leave to amend. Federal claims against Walmart and Straight Talk are
DISMISSED without leave to amend for failure to state a claim.
Plaintiff is ORDERED to show cause why his state-law claims against
Walmart and Straight Talk should not be dismissed for lack of diversity
jurisdiction. That is, Plaintiff is ORDERED to file a statement by March 14, 2018,
explaining how he could amend the existing Amended Complaint to establish
diversity jurisdiction — Plaintiff must set forth diversity of citizenship of all
parties, and show how he has incurred damages in excess of $75,000 as a result of
Walmart’s and Straight Talk’s conduct.
///
///
///
///
///
///
///
///
///
19

If Plaintiff fails to file a statement by March 14, 2018, or fails to show
how he could amend to establish diversity jurisdiction, the court will dismiss the
remaining counts of the Amended Complaint for lack of subject-matter
jurisdiction.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 1, 2018.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Tia v. CCA Inc., et al., Civ. No. 17-00523 JMS-RLP, Order (1) Dismissing Amended Complaint
in Part; and (2) To Show Cause

20