(PS) Allahyar v. Zamani ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROHULLAH ALLAHYAR, 2:23-cv-01084-KJM-KJN (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR LACK OF SUBJECT 13 v. MATTER JURISDICTION; ORDER 14 AMANULLAH ZAMANI, ET. AL, 15 Defendants. 16 17 Plaintiff, proceeding without counsel in this action, requests leave to proceed in forma 18 pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of an 19 action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 However, because the undersigned finds that the court lacks subject matter jurisdiction over this 21 action, the undersigned recommends that the action be dismissed without prejudice, and that 22 plaintiff’s application to proceed in forma pauperis in this court be denied as moot. See United 23 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (noting the 24 federal court’s independent duty to ensure it has subject matter jurisdiction in the case). 25 //// 26 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 27 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. Resolution of dispositive matters by a magistrate judge are to be filed as findings and recommendations. See 28 Local Rule 304. 1 Legal Standards 2 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & fn.7 3 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 4 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it 5 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31 6 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be 7 given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). The court must dismiss a 8 case if, at any time, it determines that it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). 9 A federal district court generally has jurisdiction over a civil action when: (1) a federal question is 10 presented in an action “arising under the Constitution, laws, or treaties of the United States” or (2) 11 there is complete diversity of citizenship and the amount in controversy exceeds $75,000. See 28 12 U.S.C. §§ 1331, 1332(a). Further, a plaintiff must have standing to assert a claim, which requires 13 an injury in fact caused by defendant(s) that may be redressed in court. Harrison v. Kernan, 971 14 F.3d 1069, 1073 (9th Cir. 2020). 15 Federal courts lack subject matter jurisdiction to consider claims that are “so 16 insubstantial, implausible, foreclosed by prior decisions of this court, or otherwise completely 17 devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a Better 18 Environment, 523 U.S. 83, 89 (1998); see also Grancare, LLC v. Thrower by & through Mills, 19 889 F.3d 543, 549-50 (9th Cir. 2018) (noting that the “wholly insubstantial and frivolous” 20 standard for dismissing claims operates under Rule 12(b)(1) for lack of federal question 21 jurisdiction). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 22 Neitzke v. Williams, 490 U.S. 319, 325 (1989). A court may dismiss a claim as frivolous where 23 it is based on an indisputably meritless legal theory or where the factual contentions are clearly 24 baseless. Id. at 327; Rule 12(h)(3). 25 //// 26 //// 27 //// 28 //// 1 Analysis 2 Plaintiff, citizen of California, sues defendants Amanullah Zamani and Naeem Gul for 3 $37,875 in losses. (ECF No. 1 at 7.) Plaintiff has not established that diversity jurisdiction exists, 4 as the amount in controversy does not exceed $75,000. See U.S.C. § 1332(a) (diversity 5 jurisdiction requires complete diversity of citizenship and that the amount in controversy exceeds 6 $75,000). Further, the complaint alleges damages sustained as a result of a motor vehicle 7 accident, and thus does not assert a federal question. (ECF No. 1 at 7.) See also 28 U.S.C. 8 § 1331 (subject matter jurisdiction exists if a federal question is presented in an action “arising 9 under the Constitution, laws, or treaties of the United States”). Accordingly, the court 10 recommends that this action be dismissed without prejudice for lack of subject matter jurisdiction. 11 See Fed. R. Civ. P. 12(h)(3) (the court must dismiss a case if, at any time, it determines that it 12 lacks subject matter jurisdiction). 13 FINDINGS AND RECOMMENDATIONS 14 Accordingly, IT IS HEREBY RECOMMENDED that: 15 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be DENIED AS MOOT; 16 2. The action be DISMISSED for lack of subject matter jurisdiction; and 17 3. The Clerk of Court be directed to CLOSE this case. 18 These findings and recommendations are submitted to the United States District Judge assigned to 19 the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 20 being served with these findings and recommendations, plaintiff may file written objections with 21 the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 22 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 23 may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 24 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 25 //// 26 ///// 27 ///// 28 ///// 1 ORDER 2 All pleading, discovery, and motion practice in this action are stayed pending resolution of 3 || these findings and recommendations. Other than objections to the findings and recommendations 4 || or non-frivolous motions for emergency relief, the court will not entertain or respond to any 5 || pleadings or motions until the findings and recommendations are resolved. 6 | Dated: November 7, 2023 Foci) Aharon 8 KENDALL J. NE alla. 1084 UNITED STATES MAGISTRATE JUDGE 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28