Finnegan v. Gallagher Bassett Services Lemonade ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Sean Matthew Finnegan, Case No.: 3:21-cv-0666-GPC-KSC 12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 Gallagher Basset Services; Lemonade MOTION TO PROCEED IN FORMA 15 PAUPERIS Defendants. 16 AND 17 (2) DISMISSING PLAINTIFF’S 18 COMPLAINT FOR LACK OF 19 SUBJECT MATTER JURISDICTION 20 21 On April 15, 2021, Plaintiff Sean Matthew Finnegan (“Plaintiff”), proceeding pro 22 se, filed a Complaint against Gallagher Basset Services and Lemonade (“Defendants”). 23 ECF No. 1. Plaintiff subsequently filed a motion to proceed in forma pauperis (“IFP”). 24 ECF No. 2. For the reasons set forth below, the Court DENIES Plaintiff’s motion to 25 proceed in forma pauperis and DISMISSES Plaintiff’s Complaint for lack of subject 26 matter jurisdiction. 27 \ \ \ 28 \ \ \ 1 DISCUSSION 2 I. Motion for Leave to Proceed In Forma Pauperis 3 All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 6 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 7 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 8 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an affidavit 9 demonstrating his inability to pay the filing fee, and the affidavit must include a complete 10 statement of the plaintiff’s assets. 28 U.S.C. § 1915(a)(1). The facts as to the affiant’s 11 poverty must be stated “with some particularity, definiteness, and certainty.” United 12 States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). When a plaintiff moves to 13 proceed IFP, the court first “grants or denies IFP status based on the plaintiff’s financial 14 resources alone and then independently determines whether to dismiss the complaint” 15 pursuant to 28 U.S.C. § 1915(e)(2) (“§ 1915(e)(2)”). Franklin v. Murphy, 745 F.2d 1221, 16 1226 n.5 (9th Cir. 1984). IFP status may be acquired and lost during the course of 17 litigation. Wilson v. Dir. of Div. of Adult Insts., No. CIV S–06–0791, 2009 WL 311150, 18 at *2 (E.D. Cal. Feb. 9, 2009) (internal citation omitted). 19 Here, Plaintiff has supplied a form application to proceed in forma pauperis. ECF 20 No. 2. However, Plaintiff has left the majority of the form blank and does not indicate 21 the amount of any income or expenses. Id. Plaintiff states that “[b]ecause my bank has 22 frozen my accounts, furthermore the defendant is liable for any and all expenses, costs, 23 fees, and damages.” Id. at 5. Plaintiff’s filing does not give the Court adequate 24 information from which to determine whether Plaintiff is unable to pay the $402 filing 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 202-)). The additional $52 administrative fee does not apply to persons granted leave to 28 1 fee. 2 Accordingly, the Court DENIES Plaintiff’s request to proceed in forma pauperis 3 without prejudice. Should Plaintiff wish to proceed in this matter, he must either pay the 4 $402 filing fee or provide a completed affidavit that shows his inability to pay the fee. 5 Plaintiff is advised that Civil Local Rule 3.2(a) provides the information required to be 6 included in any affidavit. See Civ. L.R. 3.2(a). The Court will additionally direct the 7 Clerk to provide Plaintiff with a blank copy of the Southern District of California’s 8 “Motion and Declaration Under Penalty of Perjury in Support of Motion to Proceed In 9 Forma Pauperis.” 10 II. Sua Sponte Screening 11 A complaint filed by any person proceeding IFP, pursuant to 28 U.S.C. § 1915(a), 12 is additionally subject to mandatory sua sponte screening. The Court must review 13 complaints filed by all persons proceeding IFP and must sua sponte dismiss any 14 complaint, or any portion of a complaint, which is frivolous, malicious, fails to state a 15 claim, or seeks damages from defendants who are immune. See 28 U.S.C. § 16 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc). 17 All complaints must contain “a short and plain statement of the claim showing that 18 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are 19 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 20 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 21 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 22 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 23 requires the reviewing court to draw on its judicial experience and common sense.” Id. 24 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 25 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 26 “When there are well-pleaded factual allegations, a court should assume their 27 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 28 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 1 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 2 allegations of material fact and must construe those facts in the light most favorable to 3 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 4 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6).”). 5 However, while the court “ha[s] an obligation where the Plaintiff is pro se, 6 particularly in civil rights cases, to construe the pleadings liberally and to afford the 7 Plaintiff the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 8 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 9 “supply essential elements of claims that were not initially pled,” Ivey v. Bd. of Regents of 10 the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 11 Moreover, the federal court is one of limited jurisdiction. Kokkonen v. Guardian 12 Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It possesses only that power authorized 13 by the Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 14 534, 541 (1986). It is constitutionally required to raise issues related to federal subject 15 matter jurisdiction and may do so sua sponte. Steel Co. v. Citizens for a Better Env’t, 523 16 U.S. 83, 93–94 (1998); see Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th 17 Cir. 1990). 18 Here, Plaintiff’s Complaint appears to be for breach of an insurance contract. See 19 ECF No. 1 at 4. Plaintiff states that the Court has diversity jurisdiction over the 20 complaint pursuant to 28 U.S.C. § 1332. Id. However, Plaintiff states that both he and 21 Defendants are citizens of California. Id. at 4–5. There is thus not diversity of 22 citizenship between the parties. See 28 U.S.C. § 1332(a). Plaintiff also includes “14 U.S. 23 CODE 6503” as a basis for federal question jurisdiction, but there is no Section 6503 of 24 Title 14 of the U.S. Code, which relates to the U.S. Coast Guard, see 14 U.S.C. § 101 et 25 seq., and thus this does not serve as a basis for the Court’s jurisdiction. In his Civil 26 Cover Sheet, Plaintiff cites 41 U.S. Code § 6503 as the cause of action, see ECF No. 1-1, 27 but this section of the U.S. Code pertains to breaches of certain contracts with an agency 28 of the United States and thus is not applicable to Plaintiff’s complaint arising from an 1 || alleged breach of an insurance contract between private parties. 41 U.S.C. §§ 6502, 2 6503(a). 3 The Court accordingly DISMISSES Plaintiff's Complaint, because the Court lacks 4 || jurisdiction to entertain Plaintiff's state law breach of contract claim. 5 CONCLUSION 6 For the foregoing reasons, the Court DENIES Plaintiff’s motion to proceed in 7 || forma pauperis and DISMISSES Plaintiff's Complaint for lack of subject matter 8 || jurisdiction. 9 Should Plaintiff wish to file an amended complaint curing the deficiencies noted 10 || above, he must do so within 30 days of the date of this order. The Clerk shall mail to 11 || Plaintiff a blank copy of the Southern District of California’s “Motion and Declaration 12 || Under Penalty of Perjury in Support of Motion to Proceed In Forma Pauperis.” 13 IT IS SO ORDERED. 14 ||Dated: April 19, 2021 72 15 Hon. athe Cae 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28