Landwer v. Royal Neighbors of America

• Court: District Court, D. Arizona
• Decided: November 15, 2024
• Docket: 2:24-cv-03134
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Charles H Landwer, No. CV-24-03134-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Royal Neighbors of America, US Funeral Expenses, and Unknown Party, 13 14 Defendants. 15 Pending before the Court is Plaintiff’s motion to proceed in forma pauperis. (Doc. 16 2). 17 Congress provided with respect to in forma pauperis cases that a district court “shall dismiss the case at any time if the court determines” that 18 the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous or malicious,” “fails to state a claim on which relief may be 19 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). While much of section 1915 outlines 20 how prisoners can file proceedings in forma pauperis, section 1915(e) applies to all in forma pauperis proceedings, not just those filed by prisoners. Lopez 21 v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (“section 1915(e) applies to all in forma pauperis complaints”). “It is also clear that section 1915(e) not only 22 permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.” Id. Therefore, this court must dismiss an in forma 23 pauperis complaint if it fails to state a claim or if it is frivolous or malicious. “[A] complaint, containing both factual allegations and legal conclusions, is 24 frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Furthermore, "a finding of factual 25 frivolousness is appropriate when the facts alleged rise to the level of the irrational or wholly incredible, whether or not there are judicially recognized 26 facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992). “A case is malicious if it was filed with the intention or desire to 27 harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). 28 Kennedy v. Andrews, 2005 WL 3358205, *2-3 (D. Ariz. 2005). 1 Here, Plaintiff, pro se, filed a 30-page complaint alleging violations of the 2 Telephone Consumer Protection Act (“TCPA”). (Doc. 1 at 2). Plaintiff states that he is a 3 resident of Illinois, and maintains his address in Illinois, but currently “resides” in 4 Maricopa County, Arizona. (Doc. 1 at 3). Plaintiff claims that the two named Defendants 5 principal places of business are in Illinois and Washington. (Id.). As for the Doe 6 Defendant, Plaintiff alleges that his true name may be Thomas Greene and that he works 7 for one of the other Defendants. Plaintiff does not allege a citizenship for Mr. Greene. 8 In screening a complaint under 28 U.S.C. § 1915(e)(2), it is appropriate for this 9 Court to also screen the complaint for personal jurisdiction and venue. Murray v. King 10 Cnty. Ct., No. 3:23-CV-01899-AR, 2024 WL 169681, at *1 (D. Or. Jan. 16, 2024); 11 Packwood v. County of Contra Costa, Case No. 3:22-cv-0219-ART-CLB, 2023 WL 12 2349390, at *3 (D. Nev. Mar. 2, 2023). For this Court to have venue over this case, and to 13 potentially have personal jurisdiction over Defendants, the acts underlying this case must 14 have occurred in Arizona. 15 At the beginning of the complaint, Plaintiff makes several conclusory, boilerplate1 16 and unsupported statements about venue and personal jurisdiction, including an allegation 17 that the acts, events or omissions giving rise to the complaint occurred in Arizona. (Doc. 18 1 at 2, ¶ 3). However, Plaintiff’s non-boilerplate, specific allegations about this particular 19 case are limited to paragraphs 75, 82, 84-93, and 105. These paragraphs detail Plaintiff 20 receiving a call. However, these paragraphs never reference Arizona in any way. Further, 21 the address Plaintiff uses on his complaint reflects that Plaintiff is receiving his mail in 22 Illinois. The phone number at which Plaintiff claims to have received the call in this case 23 has a Chicago, Illinois area code. 24 Further, although Plaintiff specifies that he received a call on November 9, 2024, he 25 does not specify that he was in Arizona at the time of the call. And even if he was in 26 Arizona, he does not allege that Defendants would have any reason to know that he was in

27 1 As an example of boilerplate language, Plaintiff refers to Defendants as “Defendant(s)” and uses the verb “is/are” to refer to the Defendants’ alleged presence in Arizona. (Doc. 1 28 at 2). Plaintiff should know how many Defendants are present in his own case and must allege each Defendant’s contacts with Arizona individually. || Arizona such that they availed themselves of this jurisdiction.” For these reasons, the Court 2|| is doubtful that venue is appropriate in this district or that the Court has personal 3 || jurisdiction over Defendants. 4 Thus, 5 IT IS ORDERED that Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is 6|| granted. 7 IT IS FURTHER ORDERED that within 21 days of this Order, Plaintiff must file 8 || asupplement to the complaint (or an amended complaint) making specific, non-conclusory 9|| allegations that would support his conclusions that venue is present in this district and that this Court has personal jurisdiction over Defendants. If Plaintiff fails to comply with this 11 |} Order, this case will be dismissed, without prejudice. 12 Dated this 15th day of November, 2024. 13 14 a 15 16 _ James A. Teil Org Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 ? The Court notes that Plaintiff claims to have received the call on a cellular phone, which makes it at least possible that the phone and Plaintiff were in Arizona at the time of the call. However, as indicated above, Plaintiff does not allege that he was in Arizona. Nor does he allege how Defendants would know that by calling a Chicago number they were creating contacts with Arizona.

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