Wheeler v. Astral Hotels Las Vegas Inc. ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 ANTONIO WHEELER and Case No. 2:24-cv-00547-GMN-EJY THOMAS KOVARI, 5 Plaintiffs, ORDER 6 v. 7 ASTRAL HOTEL LAS VEGAS INC.; 8 METROPOLITAN LAS VEGAS POLICE DEPARTMENT INC.; JIM GIBSON; CHAP 9 EMERGENCY RENTAL ASSISTANCE PROGRAM INC., 10 Defendants. 11 12 Pending before the Court is Plaintiff Antonio Wheeler’s application to proceed in forma 13 pauperis (“IFP”), Motion for Permission to Use and Register for Electronic Case Filing, and 14 Complaint (ECF Nos. 1-1, 2, 6).1 15 I. Application to Proceed in forma pauperis 16 Plaintiff submitted the affidavit and documentation required by 28 U.S.C. § 1915(a) showing 17 an inability to prepay fees and costs or give security for them. ECF No. 6. Accordingly, the request 18 to proceed in forma pauperis is granted below. 19 II. Plaintiff’s Motion for Permission to Use and Register for Electronic Case Filing 20 Under Local Rule IC 2-1(b), a “pro se litigant may request the court’s authorization to 21 register as a filer in a specific case.” Plaintiff has submitted the requisite Consent for Electronic 22 Service of Documents. ECF No. 4. Accordingly, his request for permission to use and register for 23 electronic case filing is granted below. 24 1 While the caption identifies Thomas Kovari as a plaintiff, the Complaint states Mr. Kovari has died. There is 25 nothing in the Complaint indicating that Mr. Wheeler is the executor of Mr. Kovari’s estate; thus, Mr. Wheeler cannot assert claims on Mr. Kovari’s behalf. LN Mgmt., LLC v. JPMorgan Chase Bank, N.A., 957 F.3d 943, 955 (9th Cir. 2020) 26 (“a party cannot maintain suit on behalf of … a dead person, or in any other way make a dead person (in that person’s own right, and not through a properly-represented estate or successor) party to a federal lawsuit.”). See also Riley v. 27 Greenpoint Mortg. Funding, Inc., Case No. 2:10-CV-1873-RLH-RJJ, 2011 WL 1979831, at *3 (D. Nev. May 20, 2011) 1 III. Screening the Complaint 2 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 3 under 28 U.S.C. § 1915(e)(2). In its review, the court must identify any cognizable claims and 4 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be 5 granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 6 1915A(b)(1), (2). However, pro se pleadings must be liberally construed. Balistreri v. Pacifica 7 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 8 A federal court must dismiss a plaintiff’s claim if the action “is frivolous or malicious[,] fails 9 to state a claim on which relief may be granted[,] or seeks monetary relief against a defendant who 10 is immune from such relief.” 28 U.S.C. § 1915(e)(2). The standard for dismissing a complaint for 11 failure to state a claim is established by Federal Rule of Civil Procedure 12(b)(6). When a court 12 dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint 13 with directions to cure its deficiencies unless it is clear from the face of the complaint that the 14 deficiencies cannot be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 15 1995). 16 IV. Analysis of Plaintiff’s Complaint 17 Federal courts are empowered to sua sponte review whether a case establishes subject matter 18 jurisdiction and dismiss a case when such jurisdiction is lacking. Fed. R. Civ. P. 12(h)(3). “Federal 19 district courts are courts of limited jurisdiction, possessing only that power authorized by 20 Constitution and statute.” K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1027 (9th Cir. 21 2011) (quotation omitted). Federal district courts “have original jurisdiction of all civil actions 22 arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal 23 district courts also have original jurisdiction over civil actions in diversity cases “where the matter 24 in controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of 25 different States.” 28 U.S.C. § 1332(a). “Section 1332 requires complete diversity of citizenship; 26 each of the plaintiffs must be a citizen of a different state than each of the defendants.” Morris v. 27 Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). Federal courts have the authority to 1 Cir. 2004). “The party asserting federal jurisdiction bears the burden of proving the case is properly 2 in federal court.” McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt 3 v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). By seeking to invoke the Court’s 4 jurisdiction, Plaintiff bears the burden of establishing jurisdiction exists. See Naffe v. Frey, 789 F.3d 5 1030, 1040 (9th Cir. 2015). 6 The Complaint filed by Mr. Wheeler indicates he, as well as Defendants Asher Gabay, Benny 7 Zerah, Astral Hotels LV Inc., Jim Gibson, and CHAP Emergency Rental Assistance Program Inc. 8 are Nevada residents. ECF No. 1-1 at 6. The Complaint further indicates Mr. Kovari was a Nevada 9 resident (ECF No. 1-1 at 6); however, given that he is deceased his “citizenship is irrelevant when 10 determining whether the controversy is between citizens of different States” for the purposes of 28 11 U.S.C. § 1332(a). Ln Mgmt., 957 F.3d at 955 (internal quotation marks omitted). Based on the 12 allegations presented, the Court finds Plaintiff does not plead complete diversity of citizenship 13 required for diversity jurisdiction. 14 The Court further finds Plaintiff seeks relief solely under state law. Id. at 6-11. Plaintiff 15 alleges no facts, even liberally construed, establishing a violation of federal law or the United States 16 Constitution. Id. Accordingly, Plaintiff fails to establish federal question subject matter jurisdiction 17 under 28 U.S.C. § 1331. 18 V. Order 19 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff Antonio Wheeler’s 20 application to proceed in forma pauperis (ECF No. 6) is GRANTED. 21 IT IS FURTHER ORDERED that Plaintiff’s Motion for Permission to Use and Register for 22 Electronic Case filing (ECF No. 2) is GRANTED. 23 IT IS FURTHER ORDERED that Plaintiff’s Complaint (ECF No. 1-1) is DISMISSED 24 without prejudice, but with leave to amend. 25 IT IS FURTHER ORDERED that if Plaintiff Antonio Wheeler chooses to file an amended 26 complaint, he must do so no later than May 20, 2024. Plaintiff’s amended complaint must be 27 complete in and of itself. The Court cannot refer to Plaintiff’s original Complaint for any purpose 1 Plaintiff’s amended complaint must establish subject matter jurisdiction through establishing a 2 federal question (a violation of a federal law or constitutional right) or diversity of citizenship. 3 Plaintiff is further advised that he may bring his wrongful eviction claims in the Eighth Judicial 4 District Court for Clark County, Nevada, which typically resolves disputes of the sort raised by 5 Plaintiff. 6 IT IS FURTHER ORDERED that Plaintiff’s failure to comply with the terms of this Order 7 may result in a recommendation that this action be dismissed without prejudice. 8 Dated this 22nd day of April, 2024. 9 10 ELAYNA J. YOUCHAH 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27