1 2 3 4 5 8 9 ALANA DUNN, Case No. 1:25-cv-00561-SKO 10 Plaintiff, FINDINGS AND RECOMMENDATION THAT THE CASE BE DISMISSED FOR 11 v. FAILURE TO STATE A CLAIM 12 NOBLE CREDIT UNION, et al., (Doc. 7) 13 Defendants. TWENTY-ONE DAY DEADLINE 14 Clerk to Assign District Judge 15 16 17 Plaintiff Alana Dunn, proceeding pro se and in forma pauperis in this action, filed a civil 18 complaint on May 12, 2025. (Doc. 1). On May 23, 2025, the undersigned screened the complaint, 19 found that it failed to state any cognizable claims, and granted Plaintiff thirty days leave to file an 20 amended complaint curing the pleading deficiencies identified in the order. (Doc. 4.) Plaintiff filed 21 a first amended complaint on June 9, 2025. (Doc. 5.) On June 25, 2025, the undersigned screened 22 the first amended complaint, found that it failed to state any cognizable claim that gives rise to 23 federal jurisdiction, and granted Plaintiff thirty days leave to “amend her complaint one final time 24 to state a claim that would establish the Court’s jurisdiction.” (Doc. 6.) 25 On June 30, 2025, Plaintiff filed a second amended complaint, which is before the Court 26 for screening. (Doc. 7.) After screening Plaintiff’s second amended complaint, the Court finds that 27 despite the explicit recitation of the deficiencies of both the original and the first amended 28 complaint, Plaintiff has still not stated a cognizable claim that gives rise to a basis for federal 1 jurisdiction. Accordingly, the Court RECOMMENDS that Plaintiff’s second amended complaint 2 be DISMISSED without leave to amend. 4 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 5 each case and shall dismiss the case at any time if the Court determines that the allegation of poverty 6 is untrue, or that the action or appeal is frivolous or malicious, fails to state a claim upon which 7 relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 8 28 U.S.C. § 1915(e)(2); see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district 9 court has discretion to dismiss in forma pauperis complaint); Barren v. Harrington, 152 F.3d 1193 10 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). If the Court determines 11 that a complaint fails to state a claim, leave to amend may be granted to the extent that the 12 deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 13 (9th Cir. 2000) (en banc). 14 The Court’s screening of a complaint under 28 U.S.C. § 1915(e)(2) is governed by the 15 following standards. A complaint may be dismissed as a matter of law for failure to state a claim 16 for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable 17 legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff 18 must allege a minimum factual and legal basis for each claim that is sufficient to give each 19 defendant fair notice of what the plaintiff’s claims are and the grounds upon which they rest. See, 20 e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 21 F.2d 795, 798 (9th Cir. 1991). 23 A. Plaintiff’s Allegations 24 Although difficult to discern, the handwritten second amended complaint appears to allege 25 that a bank employee “embezzled” money from Plaintiff’s account and engaged in “bank fraud” by 26 “falsifying records or using stolen customer information through their employment.” (Doc. 7 at 1, 27 2.) Plaintiff purports to bring her action for “fraudulent activity,” “theft deception,” “falsifying 28 1 records,” and “embezzlement” under the Computer Fraud and Abuse Act, the Electronic 2 Communications Privacy Act, and California Penal Code § 502(c). (Id. at 7–9.) 3 B. Plaintiff’s Complaint Does Not Comply with Rule 8 4 Federal Rule of Civil Procedure 8(a)’s “simplified pleading standard applies to all civil 5 actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A 6 complaint must contain “a short and plain statement of the claim showing that the pleader is entitled 7 to relief.” Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of 8 what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 9 (internal quotation marks and citation omitted). 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 11 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 12 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff 13 must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its 14 face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted 15 as true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 16 The Court construes pleadings of pro se litigants liberally and affords them the benefit of 17 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 18 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not their legal theories. 19 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil 20 rights complaint may not supply essential elements of the claim that were not initially pled,” Bruns 21 v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation marks and 22 citation omitted), and courts “are not required to indulge unwarranted inferences,” Doe I v. Wal- 23 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 24 The “sheer possibility that a defendant has acted unlawfully” is not sufficient to state a cognizable 25 claim, and “facts that are merely consistent with a defendant’s liability” fall short. Iqbal, 556 U.S. 26 at 678 (internal quotation marks and citation omitted). 27 Here, as with her prior complaints, Plaintiff’s second amended complaint is not a short and 28 plain statement of her claims. Plaintiff sets forth no facts in her complaint to support her allegations, 1 exclusively relying on conclusory statements; it is also unclear what Plaintiff is alleging and against 2 which defendant. Accordingly, the Court finds that Plaintiff’s second amended complaint fails to 3 comply with Rule 8(a). 4 C. Plaintiff Has Not Pleaded Any Cognizable Basis for Federal Court Jurisdiction 5 1. Legal Standard 6 Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to 7 that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 8 9 ALANA DUNN, Case No. 1:25-cv-00561-SKO 10 Plaintiff, FINDINGS AND RECOMMENDATION THAT THE CASE BE DISMISSED FOR 11 v. FAILURE TO STATE A CLAIM 12 NOBLE CREDIT UNION, et al., (Doc. 7) 13 Defendants. TWENTY-ONE DAY DEADLINE 14 Clerk to Assign District Judge 15 16 17 Plaintiff Alana Dunn, proceeding pro se and in forma pauperis in this action, filed a civil 18 complaint on May 12, 2025. (Doc. 1). On May 23, 2025, the undersigned screened the complaint, 19 found that it failed to state any cognizable claims, and granted Plaintiff thirty days leave to file an 20 amended complaint curing the pleading deficiencies identified in the order. (Doc. 4.) Plaintiff filed 21 a first amended complaint on June 9, 2025. (Doc. 5.) On June 25, 2025, the undersigned screened 22 the first amended complaint, found that it failed to state any cognizable claim that gives rise to 23 federal jurisdiction, and granted Plaintiff thirty days leave to “amend her complaint one final time 24 to state a claim that would establish the Court’s jurisdiction.” (Doc. 6.) 25 On June 30, 2025, Plaintiff filed a second amended complaint, which is before the Court 26 for screening. (Doc. 7.) After screening Plaintiff’s second amended complaint, the Court finds that 27 despite the explicit recitation of the deficiencies of both the original and the first amended 28 complaint, Plaintiff has still not stated a cognizable claim that gives rise to a basis for federal 1 jurisdiction. Accordingly, the Court RECOMMENDS that Plaintiff’s second amended complaint 2 be DISMISSED without leave to amend. 4 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 5 each case and shall dismiss the case at any time if the Court determines that the allegation of poverty 6 is untrue, or that the action or appeal is frivolous or malicious, fails to state a claim upon which 7 relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 8 28 U.S.C. § 1915(e)(2); see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district 9 court has discretion to dismiss in forma pauperis complaint); Barren v. Harrington, 152 F.3d 1193 10 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). If the Court determines 11 that a complaint fails to state a claim, leave to amend may be granted to the extent that the 12 deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 13 (9th Cir. 2000) (en banc). 14 The Court’s screening of a complaint under 28 U.S.C. § 1915(e)(2) is governed by the 15 following standards. A complaint may be dismissed as a matter of law for failure to state a claim 16 for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable 17 legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff 18 must allege a minimum factual and legal basis for each claim that is sufficient to give each 19 defendant fair notice of what the plaintiff’s claims are and the grounds upon which they rest. See, 20 e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 21 F.2d 795, 798 (9th Cir. 1991). 23 A. Plaintiff’s Allegations 24 Although difficult to discern, the handwritten second amended complaint appears to allege 25 that a bank employee “embezzled” money from Plaintiff’s account and engaged in “bank fraud” by 26 “falsifying records or using stolen customer information through their employment.” (Doc. 7 at 1, 27 2.) Plaintiff purports to bring her action for “fraudulent activity,” “theft deception,” “falsifying 28 1 records,” and “embezzlement” under the Computer Fraud and Abuse Act, the Electronic 2 Communications Privacy Act, and California Penal Code § 502(c). (Id. at 7–9.) 3 B. Plaintiff’s Complaint Does Not Comply with Rule 8 4 Federal Rule of Civil Procedure 8(a)’s “simplified pleading standard applies to all civil 5 actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A 6 complaint must contain “a short and plain statement of the claim showing that the pleader is entitled 7 to relief.” Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of 8 what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 9 (internal quotation marks and citation omitted). 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 11 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 12 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff 13 must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its 14 face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted 15 as true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 16 The Court construes pleadings of pro se litigants liberally and affords them the benefit of 17 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 18 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not their legal theories. 19 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil 20 rights complaint may not supply essential elements of the claim that were not initially pled,” Bruns 21 v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation marks and 22 citation omitted), and courts “are not required to indulge unwarranted inferences,” Doe I v. Wal- 23 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 24 The “sheer possibility that a defendant has acted unlawfully” is not sufficient to state a cognizable 25 claim, and “facts that are merely consistent with a defendant’s liability” fall short. Iqbal, 556 U.S. 26 at 678 (internal quotation marks and citation omitted). 27 Here, as with her prior complaints, Plaintiff’s second amended complaint is not a short and 28 plain statement of her claims. Plaintiff sets forth no facts in her complaint to support her allegations, 1 exclusively relying on conclusory statements; it is also unclear what Plaintiff is alleging and against 2 which defendant. Accordingly, the Court finds that Plaintiff’s second amended complaint fails to 3 comply with Rule 8(a). 4 C. Plaintiff Has Not Pleaded Any Cognizable Basis for Federal Court Jurisdiction 5 1. Legal Standard 6 Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to 7 that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Federal courts are 8 presumptively without jurisdiction over civil actions, and the burden to establish the contrary rests 9 upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 10 (1994). Generally, there are two bases for subject matter jurisdiction: federal question jurisdiction 11 and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. 12 Pursuant to 28 U.S.C. § 1331, federal district courts have federal question jurisdiction over 13 “all civil actions arising under the Constitution, laws, or treaties of the United States.” “A case 14 ‘arises under’ federal law either where federal law creates the cause of action or ‘where the 15 vindication of a right under state law necessarily turn[s] on some construction of federal law.’” 16 Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088–89 (9th Cir. 2002) (quoting 17 Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983)). The presence 18 or absence of federal question jurisdiction is governed by the “well-pleaded complaint rule.” 19 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under this rule, “federal jurisdiction exists 20 only when a federal question is presented on the face of the plaintiff’s properly 21 pleaded complaint.” Id. 22 Pursuant to 28 U.S.C. § 1332, district courts have diversity jurisdiction only over “all civil 23 actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest 24 and costs,” and the action is between: (1) “citizens of different States;” (2) “citizens of a State and 25 citizens or subjects of a foreign state;” (3) “citizens of different States and in which citizens or 26 subjects of a foreign state are additional parties;” and (4) “a foreign state . . . as plaintiff and citizens 27 of a State or of different States.” 28 This Court has an independent duty to consider its own subject matter jurisdiction, whether 1 or not the issue is raised by the parties and must dismiss an action over which it lacks jurisdiction. 2 Fed. R. Civ. P. 12(h)(3); see also Cal. Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 280 3 (9th Cir. 1974) (“It has long been held that a judge can dismiss sua sponte for lack of jurisdiction.”). 4 The burden is on the federal plaintiff to allege facts establishing that jurisdiction exists to hear their 5 claim(s). See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) (“A party invoking the 6 federal court’s jurisdiction has the burden of proving the actual existence of subject matter 7 jurisdiction.”). 8 2. Analysis 9 Plaintiff purports to bring a claim under the Computer Fraud and Abuse Act (“CFAA”), 18 10 U.S.C. § 1030. (See Doc. 7 at 8–9.) The CFAA “prohibits a number of different computer crimes, 11 the majority of which involve accessing computers without authorization or in excess of 12 authorization, and then taking specified forbidden actions, ranging from obtaining information to 13 damaging a computer or computer data.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1131 14 (9th Cir. 2009). The CFAA creates a private cause of action in section 1030(g). Section 1030(g) 15 states: 16 Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and 17 injunctive relief or other equitable relief. A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in 18 subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i). Damages for a 19 violation involving only conduct described in subsection (c)(4)(A)(i)(I) are limited to economic damages. No action may be brought under this subsection unless such 20 action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage. No action may be brought under this subsection for the 21 negligent design or manufacture of computer hardware, computer software, or firmware. 22 23 18 U.S.C. 1030(g). Thus, a private plaintiff must establish that the defendant violated one of the 24 provisions of section 1030(a)(1)–(7), and that the violation involved one of the factors listed in 25 section1030(c)(4)(A)(i)(I)–(V). Biesenbach v. Does 1-3, No. 21-cv-08091-DMR, 2022 WL 26 204358, at *6 (N.D. Cal. Jan 24, 2022) (citing LVRC Holdings, 581 F.3d at 1132). Here, like her 27 prior complaint, Plaintiff’s second amended complaint does not state a claim for violation of the 28 CFAA. It fails to identify which provision of the CFAA allegedly was violated, by whom, and 1 how. Naked, conclusory allegations that an unspecified defendant “had access to falsifying records 2 or stolen customer information through their employment” and “stole” amounts from Plaintiff (see 3 Doc. 7 at 2, 5, 6) are not sufficient. 4 Plaintiff’s second amended complaint also mentions the Electronic Communications 5 Privacy Act (“ECPA”). (Doc. 7 at 9 (“Depending on the specific context and actions involved, 6 other federal . . . laws might apply, such as the Electronic Communications Privacy Act (ECPA) . 7 . . . .”).) The ECPA includes a private right of action, 18 U.S.C. § 2520, and prohibits the intentional 8 interception of any wire, oral, or electronic communication as well as the disclosure of the contents 9 of any intercepted communication. 18 U.S.C. § 2511; Campbell v. Facebook, Inc., 951 F.3d 1106, 10 1117 (9th Cir. 2020). An “intercept” is defined as “the aural or other acquisition of the contents of 11 any wire, electronic, or oral communication through the use of any electronic, mechanical, or other 12 device.” 18 U.S.C. § 2510(4). Although Section 2511 does not explicitly require that the 13 acquisition of a communication occur contemporaneously with the transmission of the 14 communication, courts interpreting the language of Section 2510 have held the definition of 15 intercept as “acquisition contemporaneous with transmission.” Konop v. Hawaiian Airlines, Inc., 16 302 F.3d 868, 878 (9th Cir. 2002); see also Luis v. Zang, 833 F.3d 619, 627 (6th Cir. 2016). Here, 17 Plaintiff’s mere mention of the ECPA in her second amended complaint does not state a claim. She 18 does not identify what subsection she claims any of the defendants violated, what “communication” 19 was intercepted or disclosed, or claim any of the defendants acquired her electronic 20 communications information contemporaneously with its transmission. 21 In sum, Plaintiff has not articulated any cognizable federal claim over which this Court may 22 assert federal question jurisdiction under 28 U.S.C. § 1331. Although not alleged as a basis for 23 jurisdiction in the second amended complaint, the undersigned further determines whether there is 24 complete diversity between the parties to invoke jurisdiction to hear any state law claims, such as 25 civil conversion (theft), fraud, and violation of California Penal Code § 502 (see Doc. 7 at 1, 2, 5– 26 6, 7, 9). Plaintiff does not indicate in her second amended complaint the citizenship of the parties 27 but pleads in her initial complaint that both she and the defendants are citizens of California. (See 28 Doc. 1 at 2–3.) Since Plaintiff alleges that both she and the defendants are citizens of California, 1 the parties are not diverse, and diversity jurisdiction under 28 U.S.C. § 1332 does not exist in this 2 action. Garcia-Cardenas v. Immigration Legal Servs., APC, No. 1:13-CV-01065-AWI, 2013 WL 3 4542223, at *2 (E.D. Cal. Aug. 27, 2013) (citing Strawbridge v. Curtiss, 7 U.S. 267 (1806) (no 4 plaintiff can be a citizen of the same state as any of the defendants)). 5 Because Plaintiff has not established the Court’s subject matter jurisdiction on diversity or 6 federal question grounds, this Court does not have subject matter jurisdiction over this action. 7 D. Leave to Amend 8 When dismissing a complaint, the Ninth Circuit has stated that “leave to amend should be 9 granted unless the district court determines that the pleading could not possibly be cured by the 10 allegation of other facts.” Bly–Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (internal 11 quotation marks omitted); Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. (9th Cir. 1996). However, 12 once the court has already granted a plaintiff leave to amend a complaint, the court’s discretion in 13 determining whether to allow additional opportunities to amend is particularly broad. Sateriale v. 14 R.J. Reynolds Tobacco Co., 697 F.3d 777, 794 (9th Cir. 2012) (quoting Miller v. Yokohama Tire 15 Corp., 358 F.3d 616,622 (9th Cir.2 004)); Chodos v. West Publishing Co., 292 F.3d 992, 1003 (9th 16 Cir. 2002). 17 Further amendment is not appropriate in this case. When dismissing the first amended 18 complaint, the undersigned advised Plaintiff would have “one final opportunity to file an amended 19 complaint so she can set forth a basis for subject matter jurisdiction and specify her claims with 20 additional factual allegations.” (See Doc. 6 at 7.) The undersigned finds that a third amendment 21 of the complaint would be futile because Plaintiff has repeatedly demonstrated that she is unable to 22 marshal facts sufficient to plead a federal statute or constitutional doctrine that gives rise to her 23 claims and, based on her initial complaint, Plaintiff and all defendants do not have diverse 24 citizenship. Accordingly, undersigned recommends that the second amended complaint be 25 dismissed without leave to amend. 27 Based on the foregoing, it is HEREBY RECOMMENDED that this action be dismissed 28 without prejudice and without leave to amend. The Clerk of Court is DIRECTED to assign a 1 District Judge to this action. 2 These Findings and Recommendation will be submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within twenty- 4 one (21) days after being served with these Findings and Recommendation, Plaintiff may file 5 written objections with the Court. The document should be captioned “Objections to Magistrate 6 Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file objections within 7 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 8 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 IT IS SO ORDERED. 10
11 Dated: July 2, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28