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11 CANDACE SMITH, ) Case No.: 1:24-cv-0203 JLT HBK ) 12 Plaintiff, ) ORDER DECLINING FINDINGS AND ) RECOMMENDATIONS, DENYING WITHOUT 13 v. ) PREJUDICE PLAINTIFF’S MOTION TO ) PROCEED IN FORMA PAUPERIS, DISMISSING 14 PLANET FITNESS, et al., ) THE COMPLAINT WITH LEAVE TO AMEND, ) AND TERMINATING DEFENDANT’S MOTION 15 Defendants. ) TO DISMISS AS MOOT ) 16 ) (Docs. 2, 7, and 12) ) 17 ) ORDER DIRECTING THE CLERK OF COURT ) TO SERVE A COPY OF THE COURT’S LONG 18 ) FORM IN FORMA PAUPERIS APPLICATION ) TO PLAINTIFF 19 )
20 Candace Smith seeks to hold the defendants liable for violations of her civil rights, “sexual 21 assault [and] hate attack.” (Doc. 1 at 6.) When Plaintiff initiated the action, she also filed a motion to 22 proceed in forma pauperis. (Doc. 2.) The magistrate judge found the information provided was 23 insufficient to determine Plaintiff satisfied the requirements of 28 U.S.C. § 1915 and denied the motion 24 without prejudice. (Doc. 3 at 1.) The magistrate judge ordered Plaintiff to complete the Court’s long 25 form or pay the filing fee. (Id. at 2.) 26 After Plaintiff failed to comply with the order, the magistrate judge recommended the action be 27 dismissed for failure to comply with the Court’s order and failure to prosecute. (Doc. 12.) The 28 magistrate judge also reviewed the complaint and noted that although Plaintiff sought to invoke this 1 Court’s diversity jurisdiction, the allegations failed to show the requirements of diversity jurisdiction 2 were satisfied. (Id. at 5-6.) In addition, the magistrate judge found the Court lacks subject matter 3 jurisdiction. (Id. at 6-7.) Therefore, the magistrate judge also recommended the action be dismissed 4 for lack of jurisdiction. (Id. at 7.) Finally, the magistrate judge observed that two of the named 5 defendants filed a motion to dismiss for lack of jurisdiction “[p]rior to Plaintiff paying the filing fee or 6 being granted IFP and the Clerk of Court issuing a summons,” and recommended the motion be 7 terminated as moot in light of the recommendations for dismissal. (Id. at 1, n.2; see also id. at 7.) 8 The Court served the Findings and Recommendations on Plaintiff and the defendants who 9 appeared and notified them that any objections were due within 14 days. (Doc. 12 at 7.) Plaintiff did 10 not file any objections, and the time to do so has passed. However, the Court’s de novo review 11 pursuant to 28 U.S.C. § 636(b)(1) reveals a dismissal appears inappropriate at this time. 12 Significantly, the authority of magistrate judge may review motions to proceed in forma 13 pauperis is limited. A magistrate judge may issue an order to grant an application to proceed in forma 14 pauperis but exceeds the limited scope of authority when issuing an order to deny an application. See 15 Tripati v. Rison, 847 F.2d 548, 548-549 (9th Cir. 1988) (explaining a magistrate judge “has no 16 authority to issue a dispositive order denying in forma pauperis status” without the consent of the 17 parties under 28 U.S.C. § 636). Because the magistrate judge exceeded the permissible authority in 18 denying Plaintiff’s motion, dismissal for failure to comply with the order is not proper. See, e.g., 19 Trujillo v. Smith, 2020 U.S. App. LEXIS 19941, at *1-2 (9th Cir. June 25, 2020) (finding dismissal for 20 failure to pay was improper where the magistrate judge issued an order denying in forma pauperis 21 status, followed by a recommendation for dismissal that the district judge adopted, because the 22 magistrate judge lacked authority to issue the denial order); Harris v. Becerra, 2019 U.S. App. LEXIS 23 32026 at *1 (9th Cir. Oct. 24, 2019) (vacating the order of a magistrate judge—and the subsequent 24 dismissal for failure to pay— because “[t]he magistrate judge did not have the authority to deny [the] 25 motion to proceed in forma pauperis”). Nevertheless, the Court agrees the information provided by 26 Plaintiff was insufficient to determine she satisfies the requirements of 28 U.S.C. § 1915, and the 27 request to proceed in forma pauperis is now denied without prejudice. 28 It is also unclear whether the jurisdictional deficiencies identified by the magistrate judge could 1 be cured by amendment. Plaintiff sought to invoke diversity jurisdiction, and indicated she was a 2 resident of California. (Doc. 1 at 4.) In addition, Plaintiff indicated Planet Fitness is a citizen of 3 California. (Id.) For this reason, the magistrate judge determined there is no diversity jurisdiction 4 (See Doc. 12 at 6 [noting the complaint “indicates that Plaintiff and Defendant Planet Fitness are both 5 citizens of California, thus the Parties are not completely diverse”].) However, the Court 6 acknowledges that Plaintiff is a pro se litigant and may be unaware the citizenship of an entity is not 7 merely established by the location of a physical business. Limited research suggests Planet Fitness is a 8 limited liability company, organized under the laws of New Hampshire, and would be deemed a 9 citizen of that state. See, e.g., Barnhill v. Pla-Fit Franchise, LLC, 2015 WL 93918 (C.D. Ill. Jan. 6, 10 2015) (indicating Planet Fitness reported it was “organized and existing under the laws of the state of 11 New Hampshire”). The locations of its members are not alleged, and such information is necessary to 12 determine whether it is, in fact, a citizen of California. See, e.g., Johnson v. Columbia Props. 13 Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (a limited liability company “is a citizen of every 14 state of which its owners/members are citizens,” not simply the states in which it does business). 15 Moreover, as the magistrate judge acknowledged, Plaintiff “does not indicate the citizenship of the 16 individual Defendants.” (Doc. 12 at 6, n. 4.) 17 Given the limited information alleged in the complaint—including Plaintiff’s indication that 18 the amount in controversy is “undisclosed” (Doc. 1 at 5)—the Court is unable to conclusively state it 19 lacks diversity jurisdiction. Rather, it appears leave to amend should be granted for Plaintiff to cure 20 the pleading deficiencies related to diversity jurisdiction.1 See Lira v. Herrera, 427 F.3d 1164, 1176 21 (9th Cir. 2005) (indicating leave to amend “should be granted more liberally to pro se plaintiffs,” 22 particularly where deficiencies could potentially be cured with additional allegations). Accordingly, 23 Plaintiff will be granted one opportunity to file an amended complaint, to clarify the citizenship of all 24 defendants and the amount in controversy. The amended complaint must bear the docket number 25 assigned this case and be entitled “First Amended Complaint.” 26 /// 27
28 1 The magistrate judge also determined the Court lacks federal question jurisdiction. (Doc. 12 at 6.) However, Plaintiff 1 Based upon the foregoing, the Court ORDERS: 2 1. The Findings and Recommendations dated June 6, 2024 (Doc. 12) are declined. 3 2. Plaintiff's motion to proceed in forma pauperis (Doc. 2) is DENIED without prejudic 4 3. The Clerk of Court is directed to provide a copy of the Court’s “Application to Procee 5 in District Court Without Prepaying Filing Fees or Costs (Long Form)” to Plaintiff. 6 4.
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11 CANDACE SMITH, ) Case No.: 1:24-cv-0203 JLT HBK ) 12 Plaintiff, ) ORDER DECLINING FINDINGS AND ) RECOMMENDATIONS, DENYING WITHOUT 13 v. ) PREJUDICE PLAINTIFF’S MOTION TO ) PROCEED IN FORMA PAUPERIS, DISMISSING 14 PLANET FITNESS, et al., ) THE COMPLAINT WITH LEAVE TO AMEND, ) AND TERMINATING DEFENDANT’S MOTION 15 Defendants. ) TO DISMISS AS MOOT ) 16 ) (Docs. 2, 7, and 12) ) 17 ) ORDER DIRECTING THE CLERK OF COURT ) TO SERVE A COPY OF THE COURT’S LONG 18 ) FORM IN FORMA PAUPERIS APPLICATION ) TO PLAINTIFF 19 )
20 Candace Smith seeks to hold the defendants liable for violations of her civil rights, “sexual 21 assault [and] hate attack.” (Doc. 1 at 6.) When Plaintiff initiated the action, she also filed a motion to 22 proceed in forma pauperis. (Doc. 2.) The magistrate judge found the information provided was 23 insufficient to determine Plaintiff satisfied the requirements of 28 U.S.C. § 1915 and denied the motion 24 without prejudice. (Doc. 3 at 1.) The magistrate judge ordered Plaintiff to complete the Court’s long 25 form or pay the filing fee. (Id. at 2.) 26 After Plaintiff failed to comply with the order, the magistrate judge recommended the action be 27 dismissed for failure to comply with the Court’s order and failure to prosecute. (Doc. 12.) The 28 magistrate judge also reviewed the complaint and noted that although Plaintiff sought to invoke this 1 Court’s diversity jurisdiction, the allegations failed to show the requirements of diversity jurisdiction 2 were satisfied. (Id. at 5-6.) In addition, the magistrate judge found the Court lacks subject matter 3 jurisdiction. (Id. at 6-7.) Therefore, the magistrate judge also recommended the action be dismissed 4 for lack of jurisdiction. (Id. at 7.) Finally, the magistrate judge observed that two of the named 5 defendants filed a motion to dismiss for lack of jurisdiction “[p]rior to Plaintiff paying the filing fee or 6 being granted IFP and the Clerk of Court issuing a summons,” and recommended the motion be 7 terminated as moot in light of the recommendations for dismissal. (Id. at 1, n.2; see also id. at 7.) 8 The Court served the Findings and Recommendations on Plaintiff and the defendants who 9 appeared and notified them that any objections were due within 14 days. (Doc. 12 at 7.) Plaintiff did 10 not file any objections, and the time to do so has passed. However, the Court’s de novo review 11 pursuant to 28 U.S.C. § 636(b)(1) reveals a dismissal appears inappropriate at this time. 12 Significantly, the authority of magistrate judge may review motions to proceed in forma 13 pauperis is limited. A magistrate judge may issue an order to grant an application to proceed in forma 14 pauperis but exceeds the limited scope of authority when issuing an order to deny an application. See 15 Tripati v. Rison, 847 F.2d 548, 548-549 (9th Cir. 1988) (explaining a magistrate judge “has no 16 authority to issue a dispositive order denying in forma pauperis status” without the consent of the 17 parties under 28 U.S.C. § 636). Because the magistrate judge exceeded the permissible authority in 18 denying Plaintiff’s motion, dismissal for failure to comply with the order is not proper. See, e.g., 19 Trujillo v. Smith, 2020 U.S. App. LEXIS 19941, at *1-2 (9th Cir. June 25, 2020) (finding dismissal for 20 failure to pay was improper where the magistrate judge issued an order denying in forma pauperis 21 status, followed by a recommendation for dismissal that the district judge adopted, because the 22 magistrate judge lacked authority to issue the denial order); Harris v. Becerra, 2019 U.S. App. LEXIS 23 32026 at *1 (9th Cir. Oct. 24, 2019) (vacating the order of a magistrate judge—and the subsequent 24 dismissal for failure to pay— because “[t]he magistrate judge did not have the authority to deny [the] 25 motion to proceed in forma pauperis”). Nevertheless, the Court agrees the information provided by 26 Plaintiff was insufficient to determine she satisfies the requirements of 28 U.S.C. § 1915, and the 27 request to proceed in forma pauperis is now denied without prejudice. 28 It is also unclear whether the jurisdictional deficiencies identified by the magistrate judge could 1 be cured by amendment. Plaintiff sought to invoke diversity jurisdiction, and indicated she was a 2 resident of California. (Doc. 1 at 4.) In addition, Plaintiff indicated Planet Fitness is a citizen of 3 California. (Id.) For this reason, the magistrate judge determined there is no diversity jurisdiction 4 (See Doc. 12 at 6 [noting the complaint “indicates that Plaintiff and Defendant Planet Fitness are both 5 citizens of California, thus the Parties are not completely diverse”].) However, the Court 6 acknowledges that Plaintiff is a pro se litigant and may be unaware the citizenship of an entity is not 7 merely established by the location of a physical business. Limited research suggests Planet Fitness is a 8 limited liability company, organized under the laws of New Hampshire, and would be deemed a 9 citizen of that state. See, e.g., Barnhill v. Pla-Fit Franchise, LLC, 2015 WL 93918 (C.D. Ill. Jan. 6, 10 2015) (indicating Planet Fitness reported it was “organized and existing under the laws of the state of 11 New Hampshire”). The locations of its members are not alleged, and such information is necessary to 12 determine whether it is, in fact, a citizen of California. See, e.g., Johnson v. Columbia Props. 13 Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (a limited liability company “is a citizen of every 14 state of which its owners/members are citizens,” not simply the states in which it does business). 15 Moreover, as the magistrate judge acknowledged, Plaintiff “does not indicate the citizenship of the 16 individual Defendants.” (Doc. 12 at 6, n. 4.) 17 Given the limited information alleged in the complaint—including Plaintiff’s indication that 18 the amount in controversy is “undisclosed” (Doc. 1 at 5)—the Court is unable to conclusively state it 19 lacks diversity jurisdiction. Rather, it appears leave to amend should be granted for Plaintiff to cure 20 the pleading deficiencies related to diversity jurisdiction.1 See Lira v. Herrera, 427 F.3d 1164, 1176 21 (9th Cir. 2005) (indicating leave to amend “should be granted more liberally to pro se plaintiffs,” 22 particularly where deficiencies could potentially be cured with additional allegations). Accordingly, 23 Plaintiff will be granted one opportunity to file an amended complaint, to clarify the citizenship of all 24 defendants and the amount in controversy. The amended complaint must bear the docket number 25 assigned this case and be entitled “First Amended Complaint.” 26 /// 27
28 1 The magistrate judge also determined the Court lacks federal question jurisdiction. (Doc. 12 at 6.) However, Plaintiff 1 Based upon the foregoing, the Court ORDERS: 2 1. The Findings and Recommendations dated June 6, 2024 (Doc. 12) are declined. 3 2. Plaintiff's motion to proceed in forma pauperis (Doc. 2) is DENIED without prejudic 4 3. The Clerk of Court is directed to provide a copy of the Court’s “Application to Procee 5 in District Court Without Prepaying Filing Fees or Costs (Long Form)” to Plaintiff. 6 4. Plaintiff SHALL complete the Long Form Application and file it within 21 days of th 7 date of service of this order. In the alternative, Plaintiff may pay the filing fee in full. 8 5. Plaintiff's complaint is DISMISSED with leave to amend. 9 6. Plaintiff SHALL file an amended complaint within 21 days of the date of service of 10 this order. 11 7. Defendants’ motion to dismiss (Doc. 7) is terminated as MOOT. 12 || If Plaintiff fails to comply with any part of this order, the action will be dismissed for failure to 13 || prosecute and failure to obey the Court’s order. 14 16 || Dated: _ June 27, 2024 ( LAW pA L. wan 17 TED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28