Escobar v. America Finco Velocity Investment LLC ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 MARVIN ESCOBAR, Case No.: 2:19-cv-01311-JAD-NJK 11 Plaintiff(s), ORDER 12 v. 13 AMERICA FINCO VELOCITY 14 INVESTMENT, LLC, 15 Defendant(s). 16 Plaintiff is proceeding in this action pro se and has requested authority pursuant to 17 28 U.S.C. § 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff also submitted a 18 complaint. Docket No. 1-1. 19 I. In Forma Pauperis Application 20 Plaintiff filed the affidavit required by § 1915(a). Docket No. 1. Plaintiff has shown an 21 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed in 22 forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). 23 II. Screening the Complaint 24 A. Standards 25 Upon granting an application to proceed in forma pauperis, courts additionally screen the 26 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the 27 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 28 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 1 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 2 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 3 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 4 F.3d 1103, 1106 (9th Cir. 1995). 5 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 6 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 7 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 8 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim 9 showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. 10 Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, 11 it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause 12 of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 13 286 (1986)). The court must accept as true all well-pled factual allegations contained in the 14 complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. 15 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do 16 not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the line from 17 conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 18 Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted 19 by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 20 construction of pro se pleadings is required after Twombly and Iqbal). 21 B. Federal Question Jurisdiction 22 Federal courts are courts of limited jurisdiction and possess only that power authorized by 23 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Pursuant to 28 U.S.C. 24 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 25 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 26 federal law creates the cause of action or where the vindication of a right under state law 27 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 28 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal question jurisdiction exists is based on the 1 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a federal 2 question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar, Inc. 3 v. Williams, 482 U.S. 386, 392 (1987). 4 Here, Plaintiff’s complaint appears to allege a civil rights violation because his funds were 5 garnished after the Justice Court of North Las Vegas entered a judgment and executed a writ of 6 garnishment. Docket No. 1-1 at 4, 19-25. However, Plaintiff has not identified any federal law 7 under which he seeks to proceed. Accordingly, the Court finds that Plaintiff has not established 8 federal question jurisdiction. 9 C. Diversity Jurisdiction 10 Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over civil 11 actions in diversity cases “where the matter in controversy exceeds the sum or value of $75,000” 12 and where the matter is between “citizens of different states.” 13 Here, Plaintiff’s complaint indicates that the basis of the Court’s jurisdiction is a diversity 14 claim. Docket No. 1-1 at 3. However, Plaintiff fails to identify Defendant’s citizenship and his 15 claim involves a garnishment of $9,013.81. Id. at 1-5, 22-24, 27. Accordingly, the Court finds 16 that Plaintiff has not established diversity jurisdiction. 17 III. Conclusion 18 Accordingly, IT IS ORDERED that: 19 1. Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff shall not be 20 required to pay the filing fee of four hundred dollars ($400.00). Plaintiff is permitted 21 to maintain this action to conclusion without the necessity of prepayment of any 22 additional fees or costs or the giving of a security therefor. This order granting leave 23 to proceed in forma pauperis shall not extend to the issuance and/or service of 24 subpoenas at government expense. 25 2. The Clerk’s Office is INSTRUCTED to file Plaintiff’s complaint on the docket. 26 3. The complaint is DISMISSED with leave to amend. Plaintiff will have until 27 September 16, 2019, to file an amended complaint. If Plaintiff chooses to amend the 28 complaint, Plaintiff is informed that the Court cannot refer to a prior pleading (i.e., the 1 original complaint) in order to make the amended complaint complete. This is because, 2 as a general rule, an amended complaint supersedes the original complaint. Local Rule 3 15-1(a) requires that an amended complaint be complete in itself without reference to 4 any prior pleading. Once a plaintiff files an amended complaint, the original complaint 5 no longer serves any function in the case. Therefore, in an amended complaint, as in 6 an original complaint, each claim and the involvement of each Defendant must be 7 sufficiently alleged. 8 4. Failure to comply with this order will result in the recommended dismissal of this 9 case. 10 IT IS SO ORDERED. 11 Dated: August 16, 2019 12 ______________________________ Nancy J. Koppe 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28