Finnegan v. Uber ( 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.: 21cv670 DMS (RBB) 12 Plaintiff, ORDER (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS 14 UBER, AND (2) DISMISSING COMPLAINT 15 Defendant. WITHOUT PREJUDICE FOR LACK OF SUBJECT MATTER 16 JURISDICTION 17 Plaintiff, a non-prisoner proceeding pro se, has submitted a form Complaint along 18 with a request to proceed in forma pauperis (“IFP”). 19 20 A. Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 21 United States, except an application for writ of habeas corpus, must pay a filing fee of 22 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 23 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does 28 1 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 2 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999); Escobedo v. Applebees, 787 F.3d 3 1226, 1234 (9th Cir. 2015) (internal quotation marks and citations omitted). 4 Here, Plaintiff’s affidavit indicates he has no income, cash, or other assets. (ECF 5 No. 2.) Plaintiff reports his bank has frozen his accounts. (Id.) This Court finds Plaintiff’s 6 affidavit of assets is sufficient to show he is unable to pay the fees or post securities 7 required to maintain this action. See Civil Local Rule 3.2(a). Accordingly, the Court grants 8 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a). 9 B. Sua Sponte Screening 10 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 11 any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and 12 sua sponte review and dismissal by the court to the extent it is frivolous, malicious, fails to 13 state a claim upon which relief may be granted, or seeks monetary relief from a defendant 14 immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 15 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to 16 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc). 17 Moreover, federal courts are courts of limited jurisdiction, having subject matter 18 jurisdiction only over matters authorized by the Constitution and Congress. See Kokkonen 19 v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). In addition to the screening 20 procedures mandated by section 1915, “[i]f the court determines at any time that it lacks 21 subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); 22 see Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“[A] court may raise the 23 question of subject matter jurisdiction, sua sponte, at any time during the pendency of the 24 action.”). 25 Plaintiff alleges Defendant Uber picked up Plaintiff in Washington, D.C. to drive 26 Plaintiff to his office and the airport, but that the driver “went off course” and started 27 driving across state lines. (ECF No. 1 at 6.) Plaintiff states the Court has diversity 28 1 || jurisdiction over this action pursuant to 28 U.S.C. § 1332.7 (Ud. at 3.) For a federal court 2 ||to exercise diversity jurisdiction, there must be “complete diversity” between the parties 3 ||and the amount in controversy requirement of $75,000 must be met. See 28 U.S.C. 4 ||§ 1332(a). The party asserting diversity jurisdiction has the burden of proof. Kanter v. 5 || Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 2001). Here, Plaintiff fails to 6 || establish there is diversity between the parties, as he states both he and Defendant Uber are 7 || citizens of California. Ud. at 3-5.) Accordingly, the Court dismisses Plaintiff’ s Complaint 8 || for lack of subject matter jurisdiction. 9 CONCLUSION 10 For the foregoing reasons, Plaintiff’s Motion to Proceed IFP is GRANTED and the 11 ||Complaint is DISMISSED without prejudice for lack of subject matter jurisdiction. 12 IT IS SO ORDERED. 13 ||Dated: April 30, 2021 □ gf, p 14 a Yn: Hon. Dana M. Sabraw, Chief Judge 15 United States District Court 16 17 18 19 20 21 22 23 To the extent Plaintiff references 18 U.S.C. § 1201 as a basis for jurisdiction (see ECF No. 1 at 3), he fails to establish federal question jurisdiction because he has not shown that this federal criminal statute confers a private right of action. See Grajeda v. Bank of Am., 25 ||N.A., No. 12-CV-1716-IEG NLS, 2013 WL 2481548, at *2 (S.D. Cal. June 10, 2013) (“Generally, criminal statutes do not confer private rights of action, and thus any party 6 asserting such a private right bears the burden of establishing its existence.” (citations 27 || omitted); Jn re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1229 (9th Cir. 2008) (“If ng [the statute] does not contain a private right of action, the district court properly dismissed the . . . claim for lack of subject matter jurisdiction[.]’’).