1 2 3 4 5 6 7 10 11 KIM EDWARD ROGERS, No. 2:23-cv-0532 DJC DB PS 12 Plaintiff, 13 v. ORDER AND 14 PROGRESSIVE INSURANCE, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff Kim Edward Rogers is proceeding in this action pro se. This matter was referred 18 to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 19 before the court are plaintiff’s motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, 20 motions for leave to amend, and proposed fourth amended complaint.1 (ECF Nos. 2, 5 & 6.) The 21 fourth amended complaint alleges that the defendants acted wrongfully by refusing to pay 22 plaintiff’s insurance claim. (Fourth Am. Compl. (ECF No. 13) at 52.) 23 The court is required to screen complaints brought by parties proceeding in forma 24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 25
1 Plaintiff’s motions for leave to amend will be granted and the undersigned will screen plaintiff’s 26 fourth amended complaint. 27 2 Page number citations such as this are to the page number reflected on the court’s CM/ECF 28 system and not to the page numbers assigned by the parties. 1 2000) (en banc). Here, plaintiff’s fourth amended complaint is deficient. Accordingly, for the 2 reasons stated below, the undersigned will recommend that plaintiff’s fourth amended complaint 3 be dismissed without further leave to amend. 4 I. Plaintiff’s Application to Proceed In Forma Pauperis 5 Plaintiff’s in forma pauperis application makes the financial showing required by 28 6 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 7 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 8 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 9 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 10 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 11 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 12 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 13 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 14 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 15 District Court to examine any application for leave to proceed in forma pauperis to determine 16 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 17 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 18 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 19 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 20 state a claim on which relief may be granted, or seeks monetary relief against an immune 21 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 22 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 23 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 24 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 25 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 26 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 27 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 28 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 1 true the material allegations in the complaint and construes the allegations in the light most 2 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 3 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 4 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 5 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 6 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 7 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 8 The minimum requirements for a civil complaint in federal court are as follows: 9 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 10 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 11 judgment for the relief the pleader seeks. 12 Fed. R. Civ. P. 8(a). 13 II. Plaintiff’s Fourth Amended Complaint 14 Plaintiff’s fourth amended complaint alleges that on February 7, 2023, plaintiff was 15 traveling on Florin Road in Sacramento, California when his vehicle was struck from behind by 16 “unknown John Doe.” (Fourth Am. Compl. (ECF No. 13) at 8.) Thereafter, defendants Farmers 17 Group, Inc., doing business as Farmers Underwriters Association, Farmers Insurance Exchange, 18 and Jalin Gordon, engaged in unlawful business practices by “not paying out benefits as they are 19 clearly required to do under California law.”3 (Id. at 5.) Review of plaintiff’s fourth amended 20 complaint finds that it is deficient in at least two respects. 21 A. Jurisdiction 22 Jurisdiction is a threshold inquiry that must precede the adjudication of any case before 23 the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 24 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may adjudicate 25
3 According to the original complaint filed in this action Jalin Gordon is a Farmers Insurance 26 Claim Representative. (Compl. (ECF No. 1) at 2.) Attached to the fourth amended complaint is a 27 letter from Jalin Gordon to plaintiff advising plaintiff that “Progressive has accepted responsibility for this loss” and, thus, “[s]ince the other party has valid insurance, any injury or 28 property damage claim will be handled through their policy.” (ECF No. 13 at 57.) 1 only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S.
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1 2 3 4 5 6 7 10 11 KIM EDWARD ROGERS, No. 2:23-cv-0532 DJC DB PS 12 Plaintiff, 13 v. ORDER AND 14 PROGRESSIVE INSURANCE, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff Kim Edward Rogers is proceeding in this action pro se. This matter was referred 18 to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 19 before the court are plaintiff’s motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, 20 motions for leave to amend, and proposed fourth amended complaint.1 (ECF Nos. 2, 5 & 6.) The 21 fourth amended complaint alleges that the defendants acted wrongfully by refusing to pay 22 plaintiff’s insurance claim. (Fourth Am. Compl. (ECF No. 13) at 52.) 23 The court is required to screen complaints brought by parties proceeding in forma 24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 25
1 Plaintiff’s motions for leave to amend will be granted and the undersigned will screen plaintiff’s 26 fourth amended complaint. 27 2 Page number citations such as this are to the page number reflected on the court’s CM/ECF 28 system and not to the page numbers assigned by the parties. 1 2000) (en banc). Here, plaintiff’s fourth amended complaint is deficient. Accordingly, for the 2 reasons stated below, the undersigned will recommend that plaintiff’s fourth amended complaint 3 be dismissed without further leave to amend. 4 I. Plaintiff’s Application to Proceed In Forma Pauperis 5 Plaintiff’s in forma pauperis application makes the financial showing required by 28 6 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 7 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 8 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 9 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 10 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 11 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 12 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 13 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 14 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 15 District Court to examine any application for leave to proceed in forma pauperis to determine 16 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 17 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 18 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 19 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 20 state a claim on which relief may be granted, or seeks monetary relief against an immune 21 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 22 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 23 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 24 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 25 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 26 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 27 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 28 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 1 true the material allegations in the complaint and construes the allegations in the light most 2 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 3 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 4 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 5 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 6 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 7 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 8 The minimum requirements for a civil complaint in federal court are as follows: 9 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 10 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 11 judgment for the relief the pleader seeks. 12 Fed. R. Civ. P. 8(a). 13 II. Plaintiff’s Fourth Amended Complaint 14 Plaintiff’s fourth amended complaint alleges that on February 7, 2023, plaintiff was 15 traveling on Florin Road in Sacramento, California when his vehicle was struck from behind by 16 “unknown John Doe.” (Fourth Am. Compl. (ECF No. 13) at 8.) Thereafter, defendants Farmers 17 Group, Inc., doing business as Farmers Underwriters Association, Farmers Insurance Exchange, 18 and Jalin Gordon, engaged in unlawful business practices by “not paying out benefits as they are 19 clearly required to do under California law.”3 (Id. at 5.) Review of plaintiff’s fourth amended 20 complaint finds that it is deficient in at least two respects. 21 A. Jurisdiction 22 Jurisdiction is a threshold inquiry that must precede the adjudication of any case before 23 the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 24 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may adjudicate 25
3 According to the original complaint filed in this action Jalin Gordon is a Farmers Insurance 26 Claim Representative. (Compl. (ECF No. 1) at 2.) Attached to the fourth amended complaint is a 27 letter from Jalin Gordon to plaintiff advising plaintiff that “Progressive has accepted responsibility for this loss” and, thus, “[s]ince the other party has valid insurance, any injury or 28 property damage claim will be handled through their policy.” (ECF No. 13 at 57.) 1 only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 2 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992). “Federal courts are presumed 3 to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis, 4 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 5 546 (1986)). 6 Lack of subject matter jurisdiction may be raised by the court at any time during the 7 proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir. 8 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has 9 subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the 10 obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v. 11 Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court 12 cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380. 13 The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer 14 “federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be 15 conferred by federal statutes regulating specific subject matter. “[T]he existence of federal 16 jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to 17 those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 18 1108, 1113 (9th Cir. 2000). 19 Here, the fourth amended complaint states that this “is an action for Unfair Business 20 Practices” pursuant to California law. (Fourth Am. Compl. (ECF No. 13) at 3.) Such a claim 21 “does not raise a substantial federal question.” Avenius v. Banc of America Securities LLC, No. 22 C06-04458 MJJ, 2006 WL 4008711, at *6 (N.D. Cal. Dec. 30, 2006). 23 The fourth amended complaint does assert a vague and conclusory allegation that the 24 defendants violated plaintiff’s “statutory rights under the United States . . . Constitution[].” 25 (Fourth Am. Compl. (ECF No. 13) at 10.) However, a litigant who complains of a violation of a 26 constitutional right does not have a cause of action directly under the United States Constitution. 27 Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (affirming that it is 42 U.S.C. § 1983 that 28 provides a federal cause of action for the deprivation of rights secured by the United States 1 Constitution); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979) (explaining 2 that 42 U.S.C. § 1983 was enacted to create a private cause of action for violations of the United 3 States Constitution); Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 4 1992) (“Plaintiff has no cause of action directly under the United States Constitution.”). 5 42 U.S.C. § 1983 provides that, 6 [e]very person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation 7 of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit 8 in equity, or other proper proceeding for redress. 9 The allegations found in the complaint, however, fail to allege that any defendant acted 10 under the color of state law. Instead, it appears that the defendants are private companies and a 11 private individual. “‘§ 1983 excludes from its reach merely private conduct, no matter how 12 discriminatory or wrong.’” Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 13 (9th Cir. 1999) (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, (1999)). 14 District courts have diversity jurisdiction over “all civil actions where the matter in 15 controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action 16 is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a 17 foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are 18 additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different 19 States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be 20 a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss, 21 797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between 22 the parties-each defendant must be a citizen of a different state from each plaintiff.” In re 23 Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008). 24 Here, the fourth amended complaint does not allege the citizenship of each party. “Absent 25 unusual circumstances, a party seeking to invoke diversity jurisdiction should be able to allege 26 affirmatively the actual citizenship of the relevant parties.” Kanter v. Warner-Lambert Co., 265 27 F.3d 853, 857 (9th Cir. 2001). Moreover, “[t]he amount in controversy alleged by the proponent 28 of federal jurisdiction-typically the plaintiff in the substantive dispute—controls so long as the 1 claim is made in good faith.” Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 2 599 F.3d 1102, 1106 (9th Cir. 2010). Here, the fourth amended complaint does not allege an 3 amount in controversy. 4 B. Failure to State a Claim 5 The fourth amended complaint contains no factual allegations related to the conduct of 6 any named defendant. Instead, it consists entirely of vague and conclusory allegations such as 7 that the defendants’ conduct “has been and continues to be unfair, unlawful and harmful . . . 8 actual malice and tortious actions of fraud, breach of the insurance contract, false advertising, 9 negligent misrepresentation by claims adjustor(s) and engaging in unlawful business practices[.]” 10 (Fourth Am. Compl. (ECF No. 13) at 3.) That the defendants “have engaged in unfair, deceptive, 11 untrue and/or misleading advertising by promising timely coverage . . when it had no intention of 12 paying any true value[.]” (Id. at 5.) And that this “is part of a larger pattern of fraud, trickery and 13 deceit and justifies punitive damages.” (Id. at 6.) There are, however, no factual allegations 14 related to any named defendant. 15 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 16 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 17 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 18 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 19 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 20 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 21 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 22 557). A plaintiff must allege with at least some degree of particularity overt acts which the 23 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 24 II. Further Leave to Amend 25 For the reasons stated above, plaintiff’s fourth amended complaint should be dismissed. 26 The undersigned has carefully considered whether plaintiff may further amend the complaint to 27 state a claim upon which relief can be granted. “Valid reasons for denying leave to amend 28 include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. 1 | Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n 2 | v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to 3 | amend shall be freely given, the court does not have to allow futile amendments). 4 Here, plaintiff's original complaint suffered from essentially the same defects found in the 5 | fourth amended complaint. Despite being given an opportunity to amend plaintiff has been 6 | unable to cure these defects. Therefore, the undersigned finds that granting plaintiff further leave 7 | to amend would be futile. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiffs July 12, 2023 motion to amend (ECF No. 11) is granted; and 11 2. Plaintiff's November 9, 2023 motion to amend (ECF No. 14) is granted. 12 Also, IT IS HEREBY RECOMMENDED that: 13 1. Plaintiff's November 9, 2023 fourth amended complaint (ECF No. 13) be dismissed 14 | without further leave to amend; 15 2. Plaintiffs March 21, 2023 application to proceed in forma pauperis (ECF No. 2) be 16 || denied; and 17 3. This action be closed. 18 These findings and recommendations will be submitted to the United States District Judge 19 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 20 | after being served with these findings and recommendations, plaintiff may file written objections 21 | with the court. A document containing objections should be titled “Objections to Magistrate 22 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 23 | the specified time may, under certain circumstances, waive the right to appeal the District Court’s 24 | order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 25 || Dated: November 27, 2023
27 | DLB:6 8 DB/orders/orders.pro se/rogers0532.dism.f&rs ORAH BARNES JUN ITED STATES MAGISTRATE JUDGE