Fenton v. Kirk

• Court: District Court, S.D. California
• Decided: February 8, 2021
• Docket: 3:21-cv-00069
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NANCY L. FENTON, Case No.: 21-CV-69 JLS (KSC)

12 Plaintiff, ORDER: (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, 14 GREG KIRK; JMK PROPERTIES; AND (2) DISMISSING WITHOUT and DOES 1–50, 15 PREJUDICE PLAINTIFF’S Defendants. COMPLAINT 16

17 (ECF Nos. 1, 2) 18 19 Presently before the Court are Plaintiff Nancy L. Fenton’s Complaint (“Compl.,” 20 ECF No. 1) and Application to Proceed in District Court Without Prepaying Fees or Costs 21 (“IFP Mot.,” ECF No. 2). Having carefully considered Plaintiff’s Complaint, IFP Motion, 22 and legal arguments and the applicable law, the Court GRANTS Plaintiff’s IFP Motion 23 and DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint. 24 IN FORMA PAUPERIS MOTION 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 / / / 28 / / / 1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if she is granted leave to proceed in forma pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 4 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Although the statute does 5 not specify the qualifications for proceeding IFP, the plaintiff’s affidavit must allege 6 poverty with some particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). 7 Granting a plaintiff leave to proceed IFP may be proper, for example, when the affidavit 8 demonstrates that paying court costs will result in a plaintiff’s inability to afford the 9 “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is 10 destitute. Id. 11 Here, Plaintiff’s affidavit shows that she earns $962.00 per month in retirement, with 12 no other sources of income. See IFP Mot. at 1–2. Plaintiff does not report having any cash, 13 see id. at 2; reports holding $200.00 in her checking account, see id.; and claims a 2003 14 Accord MDX worth approximately $2,000.00 and other, unspecified assets worth 15 approximately $3,000. See id. at 3. Plaintiff’s monthly expenses exceed her monthly 16 income. See id. at 4–5. 17 The Court concludes that Plaintiff adequately has demonstrated that paying the $400 18 filing fee would result in her inability to afford the necessities of life. Accordingly, the 19 Court GRANTS Plaintiff’s IFP Motion. 20 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 21 I. Standard of Review 22 Because Plaintiff is proceeding IFP, her Complaint requires a pre-answer screening 23 pursuant to 28 U.S.C. § 1915(e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th 24 Cir. 2002) (per curiam) (holding 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 28 (eff. June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to 1 proceeding IFP); see also Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 2 (discussing 28 U.S.C. § 1915(e)(2)). Under this statute, the Court must sua sponte dismiss 3 a complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks 4 damages from defendants who are immune. See Lopez, 203 F.3d at 1126–27. “The 5 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 6 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 7 2014) (citations omitted). 8 “When a court does not have jurisdiction to hear an action, the claim is considered 9 frivolous.” Johnson v. E. Band Cherokee Nation, 718 F. Supp. 6, 6 (N.D.N.Y. 1989). 10 Moreover, “[t]he Court has an independent obligation to determine whether it has subject- 11 matter jurisdiction.” Cox v. Lee, No. CV-20-0275-PHX-DMF, 2020 WL 1904625, at *2 12 (D. Ariz. Apr. 17, 2020) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 13 (1999)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) 14 (“[F]ederal courts have an independent obligation to ensure that they do not exceed the 15 scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions 16 that the parties either overlook or elect not to press.”) (citation omitted). Pursuant to 17 Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time that it lacks 18 subject-matter jurisdiction, the court must dismiss the action” (emphasis added). As the 19 plain language of Rule 12(h)(3) suggests, this requirement is mandatory. See Arbaugh v. 20 Y&H Corp., 546 U.S. 500, 514 (2006) (noting that “‘subject-matter jurisdiction, because it 21 involves a court’s power to hear a case, can never be forfeited or waived”; therefore, “when 22 a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss 23 the complaint in its entirety”) (citation omitted). 24 II. Plaintiff’s Factual Allegations 25 On or about March 12, 2020, at approximately 2:30 p.m., Defendant Greg Kirk,2 26 allegedly a real estate broker; another man believed to be an attorney named James 27

28 1 McKinley; and a cleaning woman entered a secure gate to the property where Plaintiff 2 lives. See Compl. ¶¶ 3, 12. Plaintiff alleges these three individuals “entered [her] property 3 . . . [with the] intent . . . to frighten [her] into leaving under threat and pressure to leave 4 under force.” Id. ¶ 3. Plaintiff opened her door and asked the three individuals what they 5 were doing. See id. ¶ 4. Mr. Kirk said he was looking for the owner. See id. ¶ 5. Plaintiff 6 asked him for his name and identification, and Mr. Kirk said, “I am Greg Kirk.” Id. ¶ 6. 7 Plaintiff responded that the was the owner. See id. 8 At that point, Mr. Kirk “took one look at [Plaintiff] and became very aggressive.” 9 Id. ¶ 7. He pushed Plaintiff aside, pushed her screen door open, and stepped across the 10 threshold to Plaintiff’s home, stating, “I am the owner of this property, you need to leave 11 right now.” Id. (internal quotation marks omitted). Plaintiff told Mr. Kirk he must be 12 mistaken, as she had lived at the property for twenty-three years and had a copy of her title 13 to the property. See id. ¶ 8. Plaintiff asked Mr. Kirk to leave, but he refused “and again 14 pushed past [Plaintiff] to enter [her] home.” Id. 15 Plaintiff screamed as loudly as she could, “but [Mr. Kirk] did not budge.” Id. ¶ 9. 16 He shoved Plaintiff again and told her to leave, because “this is my home.” Id. Plaintiff 17 again asked Mr. Kirk to leave, but he refused. See id. 18 Plaintiff pointed to her window, where her title is affixed, and Mr. Kirk read it. See 19 id. ¶¶ 11–12. He said, “So what? I’m the owner now.” Id. ¶ 12. Plaintiff again asked Mr. 20 Kirk to leave, and he again refused. See id. Mr. Kirk pushed Plaintiff again, causing her 21 to stumble, and told Plaintiff “[she had] to leave now,” becoming “even more aggressive 22 and louder.” Id. ¶ 13. Plaintiff told Mr. Kirk he had to leave now. See id. She picked up 23 her phone and called the police, causing Mr. McKinley to say to Mr. Kirk, “Man, we should 24 leave now.” Id. ¶ 15 (internal quotation marks omitted). The men ran down the steps, 25 jumped into their cars, and sped away. See id. ¶¶ 15–16. The cleaning lady “was hanging 26 out of her window yelling vile obscenities.” Id. ¶ 16. 27 Plaintiff alleges that “Defendant or his assistants continues to recklessly follow [her], 28 knock on [her] door and calling out [her] name at 3: A.M.” Id. ¶ 18; see also id. ¶ 17 1 (indicating Plaintiff has experienced “continued harassment at 3 A.M. in the morning, 2 knocking on [her] door, removing [her] secured gate, telephone calls and people following 3 [her],” causing “the loss of the peaceful enjoyment of [her] home and the lack of sleep”). 4 Plaintiff “did not consent to Defendant’s act[s],” see id. at 3, and she was afraid of 5 falling, see id. ¶ 10. Plaintiff is a senior citizen with nerve damage on her right side, and 6 her blood pressure was elevated to a dangerous level and she experienced chest pains. See 7 id. She “was literally and physically being pushed around by [Mr. Kirk].” Id. She also 8 “suffered extreme mental anguish and physical pain.” See id. ¶ 15. Plaintiff alleges that 9 “Defendant intended to cause and did cause Plaintiff to suffer apprehension, pain and 10 suffering, extreme Stress and Duress, immediately affecting her Health mental and physical 11 damages.” Id. ¶ 17. 12 On January 12, 2021, Plaintiff filed her Complaint and IFP Motion. She asserts two 13 claims: (1) assault and (2) battery. See generally Compl. 14 III. Analysis 15 “Federal district courts are courts of limited jurisdiction that ‘may not grant relief 16 absent a constitutional or valid statutory grant of jurisdiction’ and are ‘presumed to lack 17 jurisdiction in a particular case unless the contrary affirmatively appears.’” Cooper v. 18 Tokyo Elec. Power Co., 990 F. Supp. 2d 1035, 1038 (S.D. Cal. 2013) (quoting A-Z Int’l v. 19 Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003)). A plaintiff bears the burden of establishing 20 that subject matter jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 21 375, 377, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994) (citing McNutt v. General 22 Motors Acceptance Corp., 298 U.S. 178, 182–183 (1936)). “This burden, at the pleading 23 stage, must be met by pleading sufficient allegations to show a proper basis for the court 24 to assert subject matter jurisdiction over an action.” Wilkerson v. Butler, 229 F.R.D. 166, 25 169 (E.D. Cal. 2005) (citing McNutt, 298 U.S. at 189; Fed. R. Civ. P. 8(a)(1) (requiring “a 26 short and plain statement of the grounds for the court’s jurisdiction”)). 27 Plaintiff’s Complaint is utterly devoid of any jurisdictional allegations, see generally 28 Compl. This alone warrants dismissal of the Complaint. See, e.g., Wilkerson, 229 F.R.D. 1 at 169 (dismissing with leave to amend pro se complaint that failed to allege grounds for 2 subject matter jurisdiction). However, even overlooking this deficiency, it does not appear, 3 based on the facts presently alleged by Plaintiff, that this Court has subject-matter 4 jurisdiction over this action. 5 There are two main bases for a district court’s subject-matter jurisdiction: federal 6 question jurisdiction and diversity jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 513 7 (2006). As to federal question jurisdiction, under 28 U.S.C. § 1331, “[t]he district courts 8 shall have original jurisdiction of all civil actions arising under the Constitution, laws, or 9 treaties of the United States.” However, Plaintiff’s action does not arise under the 10 Constitution or any federal laws. Rather, her two claims, assault and battery, are state 11 common law claims. See So v. Shin, 212 Cal. App. 4th 652, 668, as modified on denial of 12 reh’g (Jan. 28, 2013). Indeed, Plaintiff appears to cite two state statutes, CCP 240 and 720 13 ILCS § 12-3, as the basis for her claims, and cites to various state court decisions. See 14 Comp. at 3, ¶¶ 20, 23–25. Accordingly, based on the allegations presently contained in the 15 Complaint, it appears the Court lacks federal question jurisdiction over Plaintiff’s claims. 16 See, e.g., Easton v. Crossland Mortg. Corp., 114 F.3d 979, 982 (9th Cir. 1997) (finding no 17 federal question jurisdiction where “the plaintiffs alleged state law claims [for sexual 18 harassment, hostile work environment, sex discrimination, wrongful termination, assault 19 and battery, invasion of privacy, and retaliation] which included incidental reference to a 20 federal statute and the U.S. Constitution,” and “[t]he remedies sought were founded 21 exclusively on state law”). 22 As to diversity jurisdiction, under 28 U.S.C. § 1332(a)(1), “[t]he district courts shall 23 have original jurisdiction of all civil actions where the matter in controversy exceeds the 24 sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of 25 different States.” However, Plaintiff alleges that she resides in San Diego, California, see 26 Compl. ¶ 1, and that “Defendant” (presumably Mr. Kirk) “is an individual and a business 27 owner at [an address in San Diego, California],” id. ¶ 2. Plaintiff does not allege the 28 citizenship of (or indeed, any facts whatsoever concerning) Defendant JMK Properties. 1 See generally id. Accordingly, it does not appear that Plaintiff and Defendants have 2 “complete diversity” such that this Court can exercise diversity jurisdiction over this 3 matter. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (explaining that 28 U.S.C. 4 § 1332(a) requires “complete diversity,” and “thus applies only to cases in which the 5 citizenship of each plaintiff is diverse from the citizenship of each defendant”). 6 Accordingly, it does not appear from the face of the Complaint that this Court has diversity 7 jurisdiction over this action, either. 8 In light of the foregoing, the Court finds that it lacks subject-matter jurisdiction over 9 Plaintiff’s Complaint, and accordingly dismissal is warranted pursuant to 28 U.S.C. 10 § 1915(e)(2). 11 CONCLUSION 12 In light of the foregoing, the Court GRANTS Plaintiff’s IFP Motion and 13 DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint as frivolous due to lack of 14 subject-matter jurisdiction pursuant to 28 U.S.C. § 1915(e)(2). 15 Plaintiff MAY FILE an amended complaint that cures the deficiencies noted above 16 within forty-five (45) days of the electronic docketing of this Order. Any amended filing 17 must be complete in itself, without reference to Plaintiff’s original Complaint. Any claim 18 not re-alleged in Plaintiff’s amended complaint will be considered waived. See S.D. Cal. 19 CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 20 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); see also Lacey v. 21 Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave 22 to amend which are not re-alleged in an amended pleading may be “considered waived if 23 not repled”). 24 Should Plaintiff fail to file an amended complaint within forty-five (45) days, the 25 Court will enter a final Order dismissing this civil action based both on Plaintiff’s failure 26 to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and 27 her failure to prosecute in compliance with a court order requiring amendment. See Lira 28 v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of ] opportunity to fix his complaint, a district court may convert the dismissal of the 2 complaint into dismissal of the entire action.”). Such dismissal would be without prejudice 3 || to Plaintiff refiling her claims in state court. 4 IT IS SO ORDERED. 5 || Dated: February 8, 2021 tt 6 jt Janis L. Sammartino United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28