Kinnard v. Navarro

• Court: District Court, N.D. California
• Decided: July 12, 2022
• Docket: 4:22-cv-02534
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENNETH KINNARD, Case No. 22-cv-02534-JSW

8 Plaintiff, ORDER OF DISMISSAL v. 9 Re: Dkt. No. 11 10 STEVE NAVARRO, et al., Defendants. 11

12 13 On May 5, 2022, the Court granted Plaintiff Kenneth Kinnard’s (“Plaintiff’s”) motion to 14 proceed in forma pauperis and dismissed his complaint for failure to state a claim pursuant to 28 15 U.S.C. section 1915(e) (“Section 1915”) with leave to amend. (Dkt. No. 4.) Plaintiff filed an 16 amended complaint. For the following reasons, the Court DISMISSES Plaintiff’s amended 17 complaint, without leave to amend. 18 BACKGROUND 19 Plaintiff alleges that he is the owner of P&K Trucking, a family business started in Texas. 20 (Dkt. No. 11, Am. Compl. ¶ 1, 34.) Plaintiff alleges that numerous defendants conspired to ruin 21 his business by committing fraud between 1996 and 2002. Plaintiff’s allegations of fraud arise 22 from alleged misconduct by the defendants in four judicial proceedings, two in California state 23 court and two in federal court. Plaintiff seeks damages and to have the judgments in those actions 24 overturned. 25 Plaintiff filed the original complaint in this action on April 26, 2022, and sought leave to 26 proceed in forma pauperis. (Dkt. Nos. 1, 2). On May 5, 2022, Magistrate Judge Kim granted 27 Plaintiff’s application to proceed in forma pauperis but ordered a hold on service of the complaint 1 The Court ordered Plaintiff to file an amended complaint addressing the deficiencies in the order 2 by no later than June 2, 2022. On May 11, 2022, Plaintiff declined to consent to magistrate judge 3 jurisdiction, and the matter was reassigned to the undersigned. (Dkt. Nos. 5, 7.) The Court 4 granted Plaintiff’s request to extend the deadline to amend to June 30, 2033. (Dkt. No. 10.) On 5 July 1, 2022, Plaintiff filed the amended complaint. 6 ANALYSIS 7 As the Court noted in its prior order, a district court has an obligation to sua sponte dismiss 8 an in forma pauperis action under certain circumstances, including when the underlying complaint 9 sought to be filed is frivolous or when it fails to state a claim upon which relief may be granted. 10 28 U.S.C. § 1915(e)(2); see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 11 In its prior order dismissing Plaintiff’s complaint, the Court advised Plaintiff of several 12 defects in his complaint. Plaintiff’s amended complaint suffers from the same flaws as the 13 original complaint. 14 First, Plaintiff still fails to allege the basis for this Court’s subject matter jurisdiction. 15 Plaintiff asserts the Court has federal question jurisdiction over his claims and refers to several 16 federal statutes as the basis for this Court’s jurisdiction. (Am. Compl. ¶ 32.) However, he still 17 “does not specify what federal rights were violated, by whom, or what harm from those violations 18 would be.” (Dkt. No. 4, Screening Order at 2:10-12.) “The presence or absence of federal- 19 question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal 20 jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly 21 pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (internal citation and 22 quotations marks omitted). Plaintiff’s bare assertion fails to satisfy the well-pleaded complaint 23 rule.1 Thus, despite the opportunity to amend, Plaintiff still does not demonstrate a basis for 24 federal subject matter jurisdiction. 25 Additionally, Plaintiff’s allegations again fall short of the pleading requirement of Rule 26 1 To the extent Plaintiff intended to allege diversity jurisdiction, he fails to allege facts sufficient to 27 meet the citizenship and amount in controversy requirement. Plaintiff again does not allege the ] 8(a)(2). Plaintiff alleges that attorneys and parties to prior state and federal lawsuits committed 2 || fraud and conspired to commit fraud. However, like the original complaint, the amended 3 complaint lacks plausible factual support for these contentions. Plaintiffs “labels and 4 || conclusions” of fraud and conspiracy are insufficient “to state a claim to relief that is plausible on 5 its face.” Bell vy. Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). 6 Finally, in its prior Order, the Court explained that Plaintiff's claims appeared to be barred 7 || by the applicable statutes of limitation. (See Screening Order at 3.) However, Plaintiff’s 8 allegations are again limited to events occurring between 1996 and 2002. Despite having the 9 || opportunity to amend, Plaintiff has not alleged any conduct that occurred after 2002. Thus, 10 || Plaintiffs claims are untimely. 11 Although courts take a liberal approach to amendment, particularly in cases prosecuted by 12 || pro se litigants, leave to amend is properly denied where—as here—amendment would be futile. E 13 || See, e.g., Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“[A] district court should grant 14 || leave to amend even if no request to amend the pleading was made, unless it determines that the 3 15 || pleading could not possibly be cured by the allegation of other facts.”); Davis v. Powell, 901 F. 16 Supp. 2d 1196, 1222 (S.D. Cal. 2012) (“Because [Plaintiff] could not plead any additional facts to i 17 || cure the deficiencies in his pleadings and has already been given leave to amend, he should not be Z 18 || given further leave to amend his claims.”). Here, Plaintiff had already been granted leave to 19 || amend his claim but has not cured the deficiencies in his pleadings. Moreover, he will be unable 20 to cure the deficiencies because his claims are time-barred. Thus, further amendment is futile. 21 CONCLUSION 22 For the foregoing reasons, the Court DISMISSES Plaintiffs action WITHOUT LEAVE 23 TO AMEND. Plaintiff's motion to continue the case management conference is DENIED as 24 || moot. A separate judgment shall issue, and the Clerk shall close the file. 25 IT IS SO ORDERED. 26 || Dated: July 12, 2022 / | L/ ) 7 27 f 7 JEFFREY 3. WHWE 28 United ates vu Judge