(PS) Manzoor v. Ahmed, et al, No. 2:2013cv02386 - Document 6 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/17/2016 RECOMMENDING that the Amended Complaint be dismissed without leave to amend and that the Clerk be directed to close the case; Referred to District Judge John A. Mendez; Objections due within 14 days after being served with these F & R's. (Reader, L)
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(PS) Manzoor v. Ahmed, et al Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HUMAYUN MANZOOR, 12 Plaintiff, 13 14 15 v. No. 2:13-cv-2386-JAM-EFB PS FINDINGS AND RECOMMENDATIONS TAHIR AHMED, SAMINA MALIK, and SAFINA AYAZ, Defendant. 16 17 The court previously granted plaintiff’s request for leave to proceed in forma pauperis 18 pursuant to 28 U.S.C. § 1915, but dismissed plaintiff’s complaint with leave to amend pursuant to 19 28 U.S.C. § 1915(e)(2).1 ECF No. 3. The original complaint alleged that plaintiff’s mother, 20 while residing in Pakistan, died in March of 1981. Id. at 3. Plaintiff alleged that defendants Tahir 21 Ahmed, Samina Malik, and Safina Ayaz, plaintiff’s siblings, “hatched a conspiracy and divided 22 the assets of [their] mother among themselves and deprived [plaintiff] of [his] share of the 23 assets,” which he claimed to be valued at $57,143.00. Id. 24 ///// 25 ///// 26 27 28 1 This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 Dockets.Justia.com 1 The order dismissing the original complaint observed that plaintiff’s complaint failed to 2 establish that the court has subject matter jurisdiction over plaintiff’s claim(s), as the complaint 3 did not allege a federal claim for relief and the amount in controversy appeared to be less than 4 $75,000. Id. at 3-4. Therefore, the court dismissed the complaint and provided plaintiff thirty 5 days to file an amended complaint. Id. at 5. Plaintiff has since filed his first amended complaint. 6 ECF No. 4. 7 As noted in the court’s earlier order, although pro se pleadings are liberally construed, see 8 Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be 9 dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief 10 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) 11 (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s 12 obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and 13 conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual 14 allegations must be enough to raise a right to relief above the speculative level on the assumption 15 that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate 16 based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to 17 support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 18 1990). 19 In reviewing a complaint under this standard, the court must accept as true the allegations 20 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), 21 construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the 22 plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy 23 the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) 24 “requires a complaint to include a short and plain statement of the claim showing that the pleader 25 is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds 26 upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing 27 Conley v. Gibson, 355 U.S. 41 (1957)). 28 ///// 2 1 Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only 2 those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 3 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, 4 confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction 5 requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a 6 “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be 7 authorized by a federal statute that both regulates a specific subject matter and confers federal 8 jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity 9 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 10 matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World 11 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction 12 of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of 13 subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys 14 Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 15 The amended complaint alleges that plaintiff’s mother died in March of 1981. ECF No. 4 16 at 1. After his mother’s death plaintiff traveled to Pakistan, where his mother lived, but was only 17 able to stay for two weeks as he was attending college in Chicago. Id. Plaintiff claims that at the 18 time of his mother’s death she had the following assets: (1) 200,000.00 Pakistani Rupees (which 19 equates to approximately $1,905 U.S. dollars), (2) residential property in Pakistan valued at 20 approximately $198,095.00, and (3) commercial property in Pakistan valued at approximately 21 $28,571.00. Id. at 1-2. Plaintiff further alleges that he is a “Sunny Muslim and according to the 22 Islamic (Mohammedan) law of inheritance, in the absence of a written will of a deceased person, 23 his or her assets are divided in the following ratio: A son’s share is double that of a daughter’s.” 24 Id. at 2. 25 Plaintiff claims that defendants Tahir Ahmed, Samina Malik, and Safina Ayaz are his 26 siblings. Id. He claims that his siblings “hatched a conspiracy and divided the assets of [their] 27 mother among themselves and deprived [plaintiff of his] share of the assets,” which he now 28 ///// 3 1 values at $76,190.66. Id. at 2-3. He also alleges that defendants Tahir Ahmed and Safina Ayaz 2 are residents of Texas, and that defendant Samina Malik is a resident of Michigan. Id. at 2. 3 Plaintiff’s recent complaint alleges that the amount in controversy is now approximately 4 $76,000, just over the minimum requirement provided in 28 U.S.C. § 1332.2 Ignoring for now 5 the inconsistencies in the complaints and accepting as true the allegations in the amended 6 complaint, the court nevertheless finds that this action must be dismissed. 7 Assuming a basis for diversity jurisdiction, plaintiff appears to allege a state law claim for 8 fraud based on defendants “hatching a conspiracy” to deprive him of his share of his mother’s 9 assets. ECF No. 4 at 3. Under California law, claims for fraud and misrepresentation are subject 10 to a three-year statute of limitations. Cal. Civ. Proc. Code § 338(d). “The cause of action in that 11 case is not deemed to have accrued until discovery, by the aggrieved party, of the facts 12 constituting the fraud or mistake.” Id. Plaintiff alleges that his mother died in 1981. ECF No. 4 13 at 1. Plaintiff, however, did not initiate this action until more than thirty years after her death. 14 ECF No. 1. Plaintiff does not allege the precise date that the alleged conspiracy occurred, but his 15 allegations indicate that it happened around the time of his mother’s death. Plaintiff alleges that 16 he could not have brought this action at the time of his mother’s death because he was busy with 17 school and subsequent employment. ECF No. 4 at 2. It appears from these allegations that 18 plaintiff’s was aware of the facts giving rise to his fraud claim, but he simply did not file suit 19 within the three-year limitation period because he was attending to other matters of greater 20 priority to him. 21 ///// 22 ///// 23 24 25 26 27 28 2 Although the court previously noted that the instant matter appears to involve a probate dispute and therefore subject matter jurisdiction may be lacking, the court now finds that plaintiff’s claim does not “involve the administrative of an estate, the probate of a will, or any other purely probate matter.” Marshal v. Marshal, 547 U.S. 293, 312 (2006) (citing 4 Restatement (Second) of Torts § 774B (1979) (“One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that [s]he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.”). Accordingly, the court finds that the “probate exception” to subject matter jurisdiction does not apply in this case. See id. at 312. 4 1 In his amended complaint, plaintiff asserts that the statute of limitations should be waived 2 because at the time of his mother’s death he was busy with his college. He adds that after college 3 he had a job in Chicago. Thus, he asserts, he could not go to Pakistan to file a lawsuit. These 4 allegations do not provide a basis for tolling the limitations period. Indeed, a contrary finding 5 would allow tolling in virtually all cases and eviscerate the applicable statute of limitations. From 6 the face of the complaint it is apparent that plaintiff’s claims are barred by the statute of 7 limitations and his complaint must be dismissed with leave to amend.3 See Lopez v. Smith, 203 8 F.3d 1122, 1129 (9th Cir. 2000) (“Under Ninth Circuit case law, district courts are only required 9 to grant leave to amend if a complaint can possibly be saved. Courts are not required to grant 10 leave to amend if a complaint lacks merit entirely.”); see also Doe v. United States, 58 F.3d 494, 11 497 (9th Cir. 1995) (“[A] district court should grant leave to amend even if no request to amend 12 the pleading was made, unless it determines that the pleading could not be cured by the allegation 13 of other facts.”). 14 15 Accordingly, it is hereby RECOMMENDED that the amended complaint (ECF No. 4) be dismissed without leave to amend and that the Clerk be directed to close the case. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, plaintiff may file written 19 objections with the court. Such a document should be captioned “Objections to Magistrate 20 Judge’s Findings and Recommendations.” Failure to file objections within the specified time 21 ///// 22 ///// 23 24 25 26 27 28 3 Plaintiff alleges that at the time of his mother’s death he resided in Chicago, Illinois. He also alleges that defendant Tahir Ahmed and Safina Ayz are residents of the state of Texas, and that defendant Samina Malik is a resident of Michigan. Under the laws of those states, plaintiff’s claims would still be time barred. See U.S. ex rel. Walner v. Northshore University Healthsystem, 660 F. Supp. 2d 891, 898 (N.D. Ill. 2009) (five-year limitation period of common law fraud under Illinois law); Future Now Enterprises, Inc. v. Foster, 860 F. Supp. 2d 420, 428 (E.D. Mich. 2012) (six-year limitation period for fraud claims under Michigan law); R & L Inv. Property, LLC v. Hamm, 2011 WL 2462102, at * 3 (N.D. Tex. June 21, 2011) (four-year limitation period under Texas law). 5 1 may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 2 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: May 17, 2016. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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