Fong v. Dynasty Properties LLC, et al

Filing 5

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is GRANTED. REPORT AND RECOMMENDATION that this case be DISMISSED with prejudice because amendment would be futile. Objections to R&R due by 10/6/2017.The Court WITHDRAWS it order at Docket No. 4 . Signed by Magistrate Judge Nancy J. Koppe on 9/22/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KWOK FONG,

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Plaintiff is proceeding in this action pro se. On September 7, 2017, Plaintiff requested

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authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis and submitted a complaint.

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Docket No. 1.

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I.

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Plaintiff,
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vs.
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DYNASTY PROPERTIES, LLC, et al.,
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Defendants.

2:17-cv-02371-RFB-NJK
ORDER AND REPORT
AND RECOMMENDATION

In Forma Pauperis Application

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Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay fees

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and costs or give security for them. Id. Accordingly, the request to proceed in forma pauperis will

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be granted pursuant to 28 U.S.C. § 1915(a). The court will now review Plaintiff’s complaint.

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II.

Screening the Complaint

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Upon granting a request to proceed in forma pauperis, a court must additionally screen a

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complaint pursuant to § 1915(a). Federal courts are given the authority dismiss a case if the action

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is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When

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a court dismisses a complaint under § 1915(a), the plaintiff should be given leave to amend the

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complaint with directions as to curing its deficiencies, unless it is clear from the face of the

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complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d

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1103, 1106 (9th Cir. 1995).

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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint

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for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is

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essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d

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719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v.

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Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations,

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it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause

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of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Papasan v. Allain, 478 U.S. 265,

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286 (1986)). The court must accept as true all well-pled factual allegations contained in the

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complaint, but the same requirement does not apply to legal conclusions. Iqbal, 129 S.Ct. at 1950.

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Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not

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suffice. Id. at 1949. Secondly, where the claims in the complaint have not crossed the line from

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plausible to conceivable, the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations

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of a pro se complaint are held to less stringent standards than formal pleading drafted by lawyers.

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Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se

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pleadings is required after Twombly and Iqbal).

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Plaintiff seeks to proceed against Defendants Dynasty Properties, LLC and Tiger Wong under
this Court’s diversity jurisdiction. See Docket No. 1-1 at 2.

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The federal venue statute requires that a civil action based on diversity jurisdiction be brought

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only in (1) a judicial district where any defendant resides, if all defendants are residents in the same

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State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the

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claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a

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judicial district in which any defendant is subject to personal jurisdiction at the time the action is

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commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. §

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1391(a). “Under 28 U.S.C. § 1406(a), the court may dismiss an action laying venue in the wrong

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district.” Southland Transit, 2011 U.S. Dist. Lexis 24761, at *2.

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In this case, Plaintiff purports to bring a California state law cause of action on the basis of

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diversity jurisdiction. See Docket No. 1-1. Plaintiff alleges that the events giving rise to her claim
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occurred in California, and that Defendant Dynasty Properties, LLC is incorporated in Delaware and

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his its principal place of business in California. Id. at 2. Plaintiff fails to allege the residency of

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Defendant Tiger Wong. Id. The District of Nevada is mentioned in the complaint only on the first

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page, as the District of Plaintiff’s residency. Id. at 1. As such, Nevada not a proper venue for

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Plaintiff’s lawsuit against Defendants Dynasty Properties, LLC and Tiger Wong.

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III.

Order

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IT IS HEREBY ORDERED that Plaintiff’s application for leave to proceed in forma

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pauperis, Docket No. 1, is GRANTED. Plaintiff shall not be required to pay the filing fee of four

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hundred dollars ($400.00).

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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to

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conclusion without the necessity of prepayment of any additional fees or costs or the giving of a

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security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the

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issuance of subpoenas at government expense.

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IV.

Report and Recommendation

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This District is not the proper venue for this action and Plaintiff fails to plead a basis for

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exercising federal jurisdiction. Accordingly, the undersigned RECOMMENDS that this case be

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DISMISSED with prejudice1 because amendment would be futile. See Lopez v. Smith, 203 F.3d

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1122, 1126, 1131 (9th Cir. 2000) (en banc) (citing Doe v. United States, 58 F.3d 494,497 (9th Cir.

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1995) (leave to amend should be granted unless amendment would be futile)).

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IT IS SO ORDERED.

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DATED: September 22, 2017.

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NANCY J. KOPPE
United States Magistrate Judge

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The Court notes that it issued an order on September 21, 2017, requiring Plaintiff to file a
written notice of change of address in light of mail sent to Plaintiff from the Court that had been
returned as undeliverable. Docket No. 4. See also Docket No. 3. As the Court has determined that
Nevada is not the proper District for this action and recommends dismissal, the Court
WITHDRAWS its order at Docket No. 4.
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NOTICE

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Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must

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be in writing and filed with the Clerk of the Court within 14 days of service of this document.

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The Supreme Court has held that the courts of appeal may determine that an appeal has been waived

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due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142

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(1985). This Circuit has also held that (1) failure to file objections within the specified time and (2)

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failure to properly address and brief the objectionable issues waives the right to appeal the District

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Court’s order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951

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F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir.

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1983).

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