Ireland v. Discover Employees ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEROME IRELAND, JR., Case No. 1:20-cv-00903-NONE-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING 13 v. COMPLAINT WITHOUT LEAVE TO AMEND FOR LACK OF JURISDICTION 14 DISCOVER EMPLOYEES, AND FAILURE TO STATE A CLAIM 15 Defendant. (ECF No. 1) 16 OBJECTIONS DUE WITHIN THIRTY DAYS 17 18 Jerome Ireland, Jr. (“Plaintiff”), proceeding pro se and in forma pauperis, filed this 19 action alleging fraud against Discover Employees (“Defendant”). Currently before the Court is 20 Plaintiff’s complaint, filed June 29, 2020. 21 I. 22 SCREENING STANDARD 23 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 24 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 25 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 26 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 27 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis 1 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 2 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 3 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) 4 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to 5 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii) 6 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 7 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 8 In determining whether a complaint fails to state a claim, the Court uses the same 9 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a 10 short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. 11 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 12 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 14 544, 555 (2007)). 15 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 16 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 17 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 18 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] 19 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops 20 short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting 21 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for 22 the court to draw the reasonable conclusion that the defendant is liable for the misconduct 23 alleged. Iqbal, 556 U.S. at 678. 24 The court may also dismiss a claim as factually frivolous when the facts alleged lack an 25 arguable basis in law or in fact or embraces fanciful factual allegations. Neitzke v. Williams, 26 490 U.S. 319, 325 (1989). 27 / / / 1 II. 2 COMPLAINT ALLEGATIONS 3 Plaintiff brings this action alleging the basis of federal jurisdiction is fraud. (Compl. 4, 4 ECF No. 1.) Plaintiff is a citizen of California and Discover Bank Employees are a corporation 5 incorporated in Delaware and with its principal place of business in Delaware. (Id. at 4-5.) In 6 addressing the amount in controversy, Plaintiff states that he was approved for a credit line of 7 eleven trillion dollars. (Id. at 5.) 8 Plaintiff stated that while working with the Discover Global Network they provided 9 Plaintiff with an approval email so that he could write to them for approval. (Id.) Plaintiff wrote 10 to typeapproval@discover.com and when he asked for a credit increase according to what he was 11 approved, the employee stated that his approval was fishy and that she was not going to approve 12 the increase. (Id.) Plaintiff states that the employees do not understand that he has been 13 approved for a one hundred billion dollar credit line increase on his Discover card. (Id. at 6.) 14 Plaintiff states that he has been working with these people for nine years. (Id.) 15 Plaintiff has had a Discover card for nine years and he finally got approved for the card 16 while doing some marketing with CNBC. (Id. at 7.) Plaintiff made one hundred trillion dollars 17 on the market and they asked him what he wanted to do with the money. (Id.) Plaintiff said he 18 would like to put the money onto a Discover card. (Id.) When Plaintiff was approved for the 19 card he only received $500.00 and was told that he could ask for a credit increase after three 20 months. (Id.) Plaintiff asked for a credit increase but nothing happened. (Id.) Plaintiff was sent 21 a letter telling him to submit another request. (Id.) Time went by and Plaintiff was not being 22 lazy but was trying to find a way to get the money onto the card. (Id.) He tried a money market 23 account and balance transfers but nothing worked. (Id.) 24 One day Plaintiff was on the Discover Global Network and was sent an email to write to 25 typeapproval@discover.com where he could explain the situation about his one hundred trillion 26 dollars and that the email meant he had been approved due to all the work he had put in. (Id. at 27 8.) When Plaintiff talked to the lady she told him that the emails were fishy. (Id.) Plaintiff said 1 lady said that she was not going to increase his credit line and that Plaintiff could take them to 2 court. (Id.) Plaintiff was provided with a phone number to contact and the phone number for the 3 Discover Credit Operations Team. (Id.) 4 Plaintiff seeks for the Court to contact Discover and tell them that there is nothing else 5 they can do but give him a credit increase. (Id. at 8.) Plaintiff also seeks for the Court to enter 6 judgment in case no. 15-v-01230-DAD-MJS. (Id.) Plaintiff states that he won the case because 7 Judge Seng’s verdict was the death penalty for the fraudster employees at Wells Fargo Bank and 8 at Bank of America making him the winner. (Id.) Instead of opening the case back up, he and 9 the clerk decided it would be best for him to file a new case. (Id.) Plaintiff has been working on 10 getting his money every day. (Id.) He did the application for his Wells Fargo Propel American 11 Express Card three years ago and now he is finally on the issuing phase. (Id. at 9.) He has been 12 calling the instant issuing line everyday about his card and nothing has happened. (Id.) Plaintiff 13 states that the balance on his card is 21 quintillion dollars. (Id.) 14 The next card Plaintiff is working on is a business card, either the Business Advantage 15 Cash Reward Card Platinum Plus Mastercard or a Business BankAmericard. (Id.) They act like 16 they are going to surprise him with a card, but they send him to the Bank of America business line 17 or the Bank of America West Fresno Center where Plaintiff did his Merrill investing. (Id.) Judge 18 Seng told Plaintiff that he had this amount of money and if he did not come up with the money 19 Plaintiff would be in a lot of trouble. (Id.) Plaintiff came up with the money. (Id.) The balance 20 on his surprise business card is 6,010 trestrigintillion dollars.1 (Id.) Plaintiff has been banking at 21 Chase Bank due to an ink business card with 2,007,350 quintillion dollars. (Id.) Plaintiff states 22 that he just needs to get a little push from the courts because these people gave him the 23 opportunity of a lifetime and it is like he is the only one seizing the opportunity. (Id. at 9-10.) 24 / / / 25 / / / 26 / / / 27 1 III. 2 DISCUSSION 3 A. Jurisdiction 4 Plaintiff alleges that federal jurisdiction exists on the basis of fraud. Federal courts are 5 courts of limited jurisdiction and their power to adjudicate is limited to that granted by Congress. 6 U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). The Court considers the possible causes of 7 action that might be alleged based on the allegations in the complaint. 8 1. The Claims in the Complaint do not Arise Under Federal Law 9 Pursuant to 28 U.S.C. § 1331, federal courts have original jurisdiction over “all civil 10 actions arising under the Constitution, laws, or treaties of the United States. “A case ‘arises 11 under’ federal law either where federal law creates the cause of action or where the vindication 12 of a right under state law necessarily turns on some construction of federal law.” Republican 13 Party of Guam v. Gutierrez, 277 F.3d 1086, 1088 (9th Cir. 2002) (internal punctuation omitted) 14 (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983) 15 (citations omitted)). “[T]he presence or absence of federal-question jurisdiction is governed by 16 the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a 17 federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 18 Republican Party of Guam, 277 F.3d at 1089 (citations omitted). 19 Fraud of the type that Plaintiff has alleged in his complaint is “a creature of state law.” 20 Miller v. Walt Disney Co. Channel 7 KABC, No. 2:13-CV-06144 ODW SHX, 2013 WL 21 12122678, at *1 (C.D. Cal. Oct. 10, 2013) (citing Lacher v. Super. Ct., 230 Cal.App.3d 1038, 22 1043 n.1 (1991)). Plaintiff’s allegations of fraud in this action arise under state, not federal, law. 23 Plaintiff has failed to plead a federal question on the face of his complaint. 24 As Plaintiff is proceeding pro se in this action, the Court considers whether he would be 25 able to state a claim under section 1983. Section 1983 provides a cause of action for the 26 violation of a plaintiff’s constitutional or other federal rights by persons acting under color of 27 state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los 1 2002). An individual acts under color of state law under section 1983 where he has “exercised 2 power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed 3 with the authority of state law.’ ” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States 4 v. Classic, 313 U.S. 299, 326 (1941)). This does not require that the defendant be an employee 5 of the state, but he must be “a willful participant in joint action with the State or its agents. 6 Private persons, jointly engaged with state officials in the challenged action, are acting see 7 ‘under color’ of law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27–28 8 (1980). 9 Plaintiff has not alleged conduct by a state actor. Rather, Plaintiff contends that a bank 10 has refused to increase the credit limit on his credit card. These allegations cannot be construed 11 to imply state action and Plaintiff cannot state a claim under section 1983. 12 Further, the court does not find any federal law which would require a creditor to increase 13 the credit limit on a credit card at the card holder’s request. 14 2. Diversity Jurisdiction Does Not Exist in this Action 15 District courts also have original jurisdiction of all civil actions between citizens of 16 different States in which “the matter in controversy exceeds the sum or value of $75,000, 17 exclusive of interest and costs.” 28 U.S.C. § 1332(a). This requires complete diversity of 18 citizenship and the presence “of a single plaintiff from the same State as a single defendant 19 deprives the district court of original diversity jurisdiction over the entire action.” Abrego 20 Abrego v. The Dow Chemical Co., 443 F.3d 676, 679 (9th Cir. 2006) (citations omitted). 21 Here, Plaintiff alleges that he is a citizen of California and that the corporation is a citizen 22 of Delaware. However, Plaintiff has not brought suit against the corporation, but against an 23 employee of the corporation and there is no allegation as to the citizenship of the employee. 24 However, even if Plaintiff has properly plead that diversity of citizenship exists, his allegations 25 of the amount in controversy do not credibly allege that the jurisdictional amount has been met. 26 Where a plaintiff invokes federal court jurisdiction, an amount-in-controversy allegation 27 is accepted as true where it appears to have been made in good faith. Dart Cherokee Basin 1 appear that the sum claim is made in good faith, it must appear to a legal certainty that the claim 2 is really for less than the jurisdictional amount to justify dismissal. Naffe v. Frey, 789 F.3d 3 1030, 1040 (9th Cir. 2015); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 4 The basis of Plaintiff’s claim in this action is that he is being denied an increase in his 5 credit limit although he was approved for a one hundred billion dollar credit line on his Discover 6 card. Even assuming that Plaintiff could allege a cause of action for fraud based on the bank’s 7 refusal to increase his credit limit, the Court finds with a reasonable certainty that the amount in 8 controversy here would not meet the jurisdictional amount of $75,000.00.2 In this action, 9 Plaintiff was issued a credit card with a limit of $500.00. (Compl. at 7.) Plaintiff seeks an order 10 requiring Defendant to offer him a credit limit of eleven trillion dollars. While Plaintiff seeks an 11 increase in his credit limit to eleven trillion dollars, it appears to a legal certainty that this is not 12 the actual amount in controversy in this action. See Denton v. Hernandez, 504 U.S. 25, 33 13 (1992) (“finding of factual frivolousness is appropriate when the facts alleged rise to the level of 14 the irrational or the wholly incredible, whether or not there are judicially noticeable facts 15 available to contradict them”). 16 Plaintiff’s credit limit was $500.00 and he has alleged no facts that he suffered any harm 17 from the failure to raise his credit limit. Further, even if Plaintiff was to allege facts to 18 demonstrate that he suffered harm from the failure to increase his credit limit, given the 19 allegations in the complaint, any damages for this pro se plaintiff would not exceed $75,000.00. 20 Accordingly, the Court finds that the jurisdictional amount in this action is not met and the court 21 does not have jurisdiction over this controversy. 22 B. Failure to State a Claim 23 Finally, the Court finds that Plaintiff has not stated a claim for fraud based on the 24 allegations in the complaint. Allegations of fraud of subject to the pleading requirement of Rule 25 9 of the Federal Rules of Civil Procedure. Rule 9 provides that “[i]n alleging fraud or mistake, a 26 2 While Plaintiff claims that the bank offered him a credit limit of eleven trillion dollars, it appears from the 27 statements in the complaint that Plaintiff believes that the bank has offered him eleven trillion dollars. Based on the motion to proceed in forma pauperis that Plaintiff filed in this action, his monthly income is $745.00 per month. 1 party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. 2 P. 9(b). This requires a plaintiff to plead with “more specificity including an account of the time, 3 place, and specific content of the false representations as well as the identities of the parties to 4 the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal 5 punctuation and citations omitted). Initially, Plaintiff’s allegations are insufficient to plead fraud 6 with particularity as required under Rule 9. 7 To allege fraud with particularity, a plaintiff must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is 8 false or misleading about a statement, and why it is false. In other words, the plaintiff must set forth an explanation as to why the statement or omission 9 complained of was false or misleading. A plaintiff might do less and still identify the statement complained of; indeed, the plaintiff might do less and still set forth 10 some of the circumstances of the fraud. But the plaintiff cannot do anything less and still comply with Rule 9(b)’s mandate to set forth with particularity those 11 circumstances which constitute the fraud. 12 In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994). 13 The elements of a fraud claim under California law are “(a) misrepresentation (false 14 representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent 15 to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” Kearns v. 16 Ford Motor Co., 567 F.3d 1120, 1126 (9th Cir. 2009); Lazar v. Superior Court, 12 Cal. 4th 631, 17 638 (1996). 18 Plaintiff makes conclusory allegations of fraud, but there are no facts alleged to 19 demonstrate that any statement was fraudulent or that there was an intent to defraud by the 20 defendant. Here, Plaintiff alleges that he received an email stating that he had been approved for 21 a credit card when he indicated that he had made one hundred trillion dollars on the market. 22 (Compl. at 7.) When the credit card was issued his credit limit was for $500.00. (Id.) When 23 Plaintiff asked the agent to increase the credit limit based on the initial approval of one hundred 24 billion dollars as the limit on his credit card, the agent told him that the emails were fishy. Id. 25 The fact that an allegedly fraudulent statement and a later statement are different does not 26 necessarily amount to an explanation as to why the earlier statement was false. In re GlenFed, 27 Inc. Sec. Litig., 42 F.3d at 1549. Here, Plaintiff has not alleged any facts by which the Court 1 with intent to defraud. Iqbal, 556 U.S. at 678. 2 C. Leave to Amend 3 Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be freely 4 given when justice so requires. Fed. R. Civ. P. 15(a)(2). In determining whether to grant leave 5 to amend, the court considers five factors: “(1) bad faith; (2) undue delay; (3) prejudice to the 6 opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended 7 his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004); accord Madeja v. 8 Olympic Packers, LLC., 310 F.3d 628, 636 (9th Cir. 2002). The factors are not given equal 9 weight and futility alone is sufficient to justify the denial of a motion to amend. Washington v. 10 Lowe’s HIW Inc., 75 F.Supp.3d 1240, 1245 (N.D. Cal. 2014), appeal dismissed (Feb. 25, 2015). 11 A pro se litigant’s complaint should not be dismissed “without leave to amend ‘unless it is 12 absolutely clear that the deficiencies of the complaint cannot be cured by amendment.’ ” Akhtar 13 v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 14 1203-04 (9th Cir. 1988)). 15 In this instance, the Court finds that Plaintiff can allege no facts which establish federal 16 jurisdiction over the claims in this action. Additionally, Plaintiff’ application to proceed without 17 prepayment of fees in this action demonstrates that Plaintiff receives $745.00 per month in 18 Social Security and has no other income investments or property. The Court finds that Plaintiff’s 19 factual allegations regarding his earnings and the credit cards that have been offered to him are 20 not based in reality. Accordingly, the Court finds that granting Plaintiff leave to file an amended 21 complaint would be futile. 22 IV. 23 CONCLUSION AND RECOMMENDATIONS 24 Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s complaint be 25 dismissed without leave to amend for lack of jurisdiction and failure to state a claim. 26 This findings and recommendations is submitted to the district judge assigned to this 27 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) wOASe YUU NINN SPA MEU OO Ie eT YY AU VT tl 1 | recommendations with the court. Such a document should be captioned “Objections to 2 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 3 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 4 | Plaintiff is advised that failure to file objections within the specified time may result in the 5 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 6 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 IT IS SO ORDERED. OF a Se 9 | Dated: _July 1, 2020 _ ef 0 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28