Tippy, Jr. v. Alpha Plexes LLC ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Kenneth R. Tippy, Jr., Case No. 2:24-cv-01364-RFB-DJA 6 Plaintiff, 7 Order v. 8 Alpha Plexus LLC c/o Aspire Realty Group, 9 Defendant. 10 11 Under 28 U.S.C. § 1915 Plaintiff is proceeding in this action pro se and has requested 12 authority to proceed in forma pauperis. (ECF No. 1). Plaintiff also submitted a complaint. (ECF 13 No. 1-1). Because the Court finds that Plaintiff’s application is complete, it grants the application 14 to proceed in forma pauperis. However, because the Court finds that Plaintiff’s complaint does 15 not properly assert sufficient facts, it dismisses the complaint with leave to amend. 16 I. In forma pauperis application. 17 Plaintiff filed the affidavit required by § 1915(a). (ECF No. 1). Plaintiff has shown that 18 his income exceeds his expenses. However, he adds that he has credit card debt. And the income 19 he has left over after expenses barely exceeds the filing fee. Accordingly, the request to proceed 20 in forma pauperis will be granted under 28 U.S.C. § 1915(a). The Court will now review 21 Plaintiff’s complaint. 22 II. Legal standard for screening. 23 Upon granting an application to proceed in forma pauperis, courts additionally screen the 24 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 25 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 27 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend 1 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 2 F.3d 1103, 1106 (9th Cir. 1995). 3 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 4 complaint for failure to state a claim upon which relief can be granted. Review under Rule 5 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 6 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of 7 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 8 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 9 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 10 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 11 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 12 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 13 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 14 allegations, do not suffice. Id. at 678. Where the claims in the complaint have not crossed the 15 line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 16 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 17 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 18 construction of pro se pleadings is required after Twombly and Iqbal). 19 III. Screening the complaint. 20 Plaintiff sues Alpha Plexus LLC c/o Aspire Realty Group, claiming that he was not given 21 a legal notice of eviction. (ECF No. 1-1 at 3). However, that is the extent of his factual 22 allegations. And Plaintiff has not established the grounds for this Court’s jurisdiction over his 23 claims. Generally speaking, there are two types of jurisdiction a federal court may have over a 24 civil case: (1) federal question jurisdiction; and (2) diversity jurisdiction. See 28 U.S.C. §§ 1331, 25 1332. 26 /// 27 /// 1 The first type of jurisdiction—federal question jurisdiction—exists when a civil action 2 arises “under the Constitution, laws, or treaties of the United States.” 1 See 28 U.S.C. § 1331. 3 Plaintiff invokes this type of jurisdiction because he marks the box for federal question 4 jurisdiction on his complaint form. However, Plaintiff has not identified any federal law forming 5 the basis for his claim. 6 The second type of jurisdiction is known as “diversity jurisdiction,” and exists “where the 7 matter in controversy exceeds the sum or value of $75,000” and where the matter is between 8 “citizens of different states.” See 28 U.S.C. § 1332(a). But it is not clear that Plaintiff has 9 established diversity jurisdiction. Plaintiff has not listed the amount of damages he is seeking, or 10 even identified the form of relief he is seeking. And his complaint indicates that both him and 11 Defendant are citizens of Nevada. 12 The Court will give Plaintiff another opportunity to amend his complaint. But Plaintiff 13 must establish either federal question jurisdiction or diversity jurisdiction in any amended 14 complaint. If he cannot, while Plaintiff may be able to bring his claims in state court, this Court 15 will not be able to hear his claims. 16 17 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma 18 pauperis (ECF No. 1) is granted. Plaintiff shall not be required to pre-pay the filing fee. 19 Plaintiff is permitted to maintain this action to conclusion without the necessity of prepayment of 20 any additional fees or costs or the giving of a security therefor. This order granting leave to 21 proceed in forma pauperis shall not extend to the issuance and/or service of subpoenas at 22 government expense. 23 24 25 1 Cases “arise under” federal law either when federal law creates the cause of action or where the vindication of a right under state law necessarily turns on the construction of federal law. 26 Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002). Whether 27 federal-question jurisdiction exists is based on the “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a federal question is presented on the face of the 1 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file Plaintiff’s 2 complaint (ECF No. 1-1) on the docket but shall not issue summons. 3 IT IS FURTHER ORDERED that the complaint (ECF No. 1-1) is dismissed without 4 prejudice for failure to state a claim upon which relief can be granted, with leave to amend. 5 Plaintiff will have until August 26, 2024, to file an amended complaint if the noted deficiencies 6 can be corrected. If Plaintiff chooses to amend the complaint, Plaintiff is informed that the Court 7 cannot refer to a prior pleading (i.e., the original complaint) to make the amended complaint 8 complete. This is because, generally, an amended complaint supersedes the original complaint. 9 Local Rule 15-1(a) requires that an amended complaint be complete without reference to any 10 prior pleading. Once a plaintiff files an amended complaint, the original complaint no longer 11 serves any function in the case. Therefore, in an amended complaint, as in an original complaint, 12 each claim and the involvement of each Defendant must be sufficiently alleged. Failure to 13 comply with this order will result in the recommended dismissal of this case. 14 15 DATED: July 26, 2024 16 DANIEL J. ALBREGTS 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27