Munoz v. Peterson Recovery Group ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS MUNOZ, Case No. 1:21-cv-1026-AWI-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE FOR 13 v. LACK OF JURISDICTION, FAILURE TO STATE A CLAIM, AND FAILURE TO 14 PETERSON RECOVERY GROUP; PROSECUTE1 WESTERN RECOVERY, 15 FOURTEEN-DAY OBJECTION PERIOD Defendants. 16 17 18 Plaintiff Carlos Munoz, who is proceeding pro se, initiated this action by filing a 19 complaint on June 29, 2021. (Doc. No. 1, “Complaint”). On July 1, 2021, the Court entered an 20 order directing Plaintiff to either show cause why this Court has jurisdiction, file an amended 21 complaint, or voluntarily dismiss the action within twenty-one days. (Doc. No. 2, “July 1 22 Order”). Because Plaintiff has not timely responded or otherwise complied with the July 1 Order, 23 the undersigned recommends the district court dismiss the action for lack of jurisdiction, or 24 alternatively for failure to prosecute, as set forth more fully below. 25 /// 26 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Eastern District of 27 California Local Rule 302 (E.D. Cal. 2019). 28 1 BACKGROUND 2 Plaintiff Carlos Munoz initiated this action by filing a pro se complaint on June 29, 2021. 3 (Doc. No. 1). The Complaint named Peterson Recovery Group and Western Recovery as 4 Defendants. (Id. at 1). The Complaint also named two John Doe defendants, who Plaintiff 5 identifies as individuals working at the collection agency. (Id. at 3). The Complaint comprises 6 only a few rambling sentences. It states that Plaintiff was notified of insufficient funds when he 7 was contacted to collect on the checks and warned that he may be subject to criminal prosecution. 8 (Id. at 3). As relief, Plaintiff states “Open to Whatever.” Id. at 6. On July 1, 2021, the Court 9 granted Plaintiff’s motion for leave to proceed in forma pauperis but directed Plaintiff to show 10 cause why the federal court has jurisdiction within twenty-one days from receiving the order. 11 (Doc. No. 3 at 1-3). Alternatively, the Court directed Plaintiff to file an amended complaint, or to 12 voluntarily dismiss the action. (Id.). Plaintiff moved for an enlargement of time to comply with 13 the Court’s July 1 Order. (Doc. No. 4). On July 28, 2021, the Court granted Plaintiff’s motion 14 permitting him a fourteen-day enlargement of time. (Doc. No. 5). As of the date of this Findings 15 and Recommendations, Plaintiff’s extended deadline has expired, but Plaintiff has not complied 16 with the Court’s July 1 Order. (See docket). 17 APPLICABLE LAW AND ANALYSIS 18 A. Dismissal under Federal Rule of Civil Procedure 12(h)(3) 19 Federal Rule of Civil Procedure 12(h)(3) provides that if the court determines at any time 20 it lacks subject matter jurisdiction, the court must dismiss the action. The Court is required to sua 21 sponte inquire whether it has proper subject matter jurisdiction of a case. “Federal courts are 22 courts of limited jurisdiction.” Home Depot U.S.A., Inc. v. Jackson, ____ U.S. ____, 139 S.Ct. 23 1743, 1745 (2019) (citations omitted). Article II, § 2 of the Constitution delineates “the character 24 of the controversies over which federal judicial authority may extend.” Id. (citations omitted). 25 “And lower federal-court jurisdiction ‘is further limited to those subjects encompassed within a 26 statutory grant of jurisdiction.’” Id. 27 A federal court has subject matter jurisdiction of a case when it raises a federal question, 28 or when diversity jurisdiction exists. See 28 U.S.C. §§ 1331, 1332(a); see also Home Depot USA 1 139 S.Ct. at 1745. Federal question jurisdiction “affords parties a forum in which to vindicate 2 federal rights,’ whereas diversity jurisdiction provides ‘a neutral forum’ for parties from different 3 States.” Id. at 1746. Diversity jurisdiction requires complete diversity of citizenship among the 4 opposing parties and an amount in controversy greater than $75,000.00, exclusive of interest and 5 costs. 28 U.S.C. § 1332(a). Citizenship requires physical presence and the intent to remain. 6 Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). 7 Here, the Complaint neither references a federal law nor federal statute. (See Doc. No. 1 8 at 4). Liberally construing the abbreviated facts in the Complaint, the undersigned cannot 9 independently discern of any basis to invoke jurisdiction under 28 U.S.C. § 1331. Further, both 10 diversity and the amount in controversy are unknown to invoke jurisdiction under 28 U.S.C. § 11 1332(a). Plaintiff was directed to show cause on what basis this Court had federal jurisdiction 12 and failed to do so. (See docket). Thus, the undersigned recommends the district court dismiss 13 this action for lack of federal jurisdiction under Rule 12(h)(3). 14 B. Section 1915(e)(2)(b)(ii) dismissal for Failure to State a Claim 15 Alternatively, the Court finds the complaint should be dismissed for failure to state a 16 claim. Because Plaintiff is proceeding in form pauperis, the Court may dismiss a case “at any 17 time” if the Court determine, inter alia, the action fails to state claim or seeks monetary relief 18 against a defendant who is immune from such relief. 28 U.S.C § 1915(e)(2)(B)(ii)-(iii). 19 However, a complaint should not be dismissed unless it appears beyond doubt that the plaintiff 20 can prove no set of facts in support of his or her claim that would entitle him to relief. Johnson v. 21 Knowles, 113 F.3d 1114, 1117 (9th Cir.), cert. denied, 552 U.S. 996 (1997). Dismissal for failure 22 to state a claim in this context is governed by the same standard as dismissal under Federal Rule 23 of Civil Procedure 12(b)(6). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). As 24 such, a complaint must contain sufficient factual matter to state a claim to relief that is “plausible 25 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A complaint is plausible on its face 26 when it contains sufficient facts to support a reasonable inference that the defendant is liable for 27 the misconduct alleged.” Id. At this stage, the court accepts the facts stated in the complaint as 28 true. Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976). The court does not accept as 1 true allegations that are merely conclusory, unreasonable inferences, or unwarranted deductions. 2 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Nor are legal conclusions 3 considered facts. Iqbal, 556 U.S. at 678. 4 Here, the Complaint is devoid of facts to state a cognizable claim. As set forth supra, the 5 Complaint states only that Plaintiff was contacted to collect on checks with insufficient funds and 6 he may face criminal liability. A complaint must contain “a short and plain statement of the 7 claim showing the pleader is entitled to relief. . ..” Fed. R. Civ. P. 8(a)(2). Detailed factual 8 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 9 supported by mere conclusory statements, do not suffice,” Iqbal, 556 U.S. at 678 (citations 10 omitted), and courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 11 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 12 While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678. 13 If the court determines that a pleading could be cured by the allegation of other facts, a pro se 14 litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See 15 Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of Corr., 16 66 F.3d 245, 248 (9th Cir. 1995). A district court should not, however, advise the litigant on how 17 to cure the defects. Such advice “would undermine district judges’ role as impartial 18 decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 19 n.13. 20 Plaintiff was provided an opportunity to file an amended complaint to cure the 21 deficiencies in the Complaint but did not file an amended complaint. Thus, in the alternative, the 22 undersigned recommends the district court dismiss the complaint for failure to state a claim. 23 C. Federal Rule of Civil Procedure 41(b) 24 Finally, the undersigned recommends dismissal of the action for failure to prosecute. 25 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action when a 26 litigant fails to prosecute an action or fails to comply with other Rules or with a court order. See 27 Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 28 2019) (citations omitted). Local Rule 110 similarly permits the court to impose sanctions on a 1 party who fails to comply with the court’s Rules or any order of court. 2 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 3 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 4 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; (5) the 5 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting court 6 that these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis 7 added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors 8 and independently reviewing the record because district court did not make finding as to each); 9 but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but 10 noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 11 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se 1983 action when plaintiff did 12 not amend caption to remove “et al” as the court directed and reiterating that an explicit finding of 13 each factor is not required by the district court). 14 The undersigned considers each of the above-stated factors and concludes dismissal is 15 warranted in this case. The expeditious resolution of litigation is deemed to be in the public 16 interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 17 1999). This case has been pending since June 2021. (See docket). Plaintiff was ordered to show 18 cause or to file an amended complaint in July 2021 and has not done so. (Id.). Turning to the 19 second factor, the Court’s need to efficiently manage its docket cannot be overstated. This Court 20 has “one of the heaviest caseloads in the nation,” and due to unfilled judicial vacancies, which is 21 further exacerbated by the Covid-19 pandemic, operates under a declared judicial emergency. 22 See Amended Standing Order in Light of Ongoing Judicial Emergency in the Eastern District of 23 California. The Court’s time is better spent on its other matters, rather than needlessly consumed 24 with managing a case with a recalcitrant litigant. Indeed, “trial courts do not have time to waste 25 on multiple failures by aspiring litigants to follow the rules and requirements of our courts.” 26 Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of 27 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 28 timely respond to court order and noting “the weight of the docket-managing factor depends upon 1 | the size and load of the docket, and those in the best position to know what that is are our 2 | beleaguered trial judges.”). Delays inevitably have the inherent risk that evidence will become 3 | stale, or witnesses’ memories will fade or be unavailable and can prejudice a defendant, thereby 4 | satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Additionally, the 5 | instant dismissal is a dismissal without prejudice, which is a lesser sanction than a dismissal with 6 || prejudice, thereby addressing the fifth factor. After considering the factors set forth supra and 7 | binding case law, the undersigned recommends dismissal, without prejudice, under Federal Rule 8 | of Civil Procedure 41. 9 Accordingly, it is RECOMMENDED: 10 1. This case be dismissed for lack of jurisdiction under Federal Rule of Civil Procedure 11 12(h)3); failure to state a claim under 28 U.S.C. 28 U.S.C § 1915(e)(2)(B)Gi); and/or (3) failure 12 | to prosecute under Federal Rule Civil Procedure 41. 13 2. The Clerk of Court be directed to terminate any pending motions/deadlines and close 14 || this case. 15 NOTICE TO PARTIES 16 These findings and recommendations will be submitted to the United States district judge 17 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 18 || (14) days after being served with these findings and recommendations, a party may file written 19 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 20 | Findings and Recommendations.” Parties are advised that failure to file objections within the 21 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 22 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 | Dated: _ November 23, 2021 Mile. Wh. foareh fackte 5 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 27 28