Payne v. Publishers Clearing House, No. 1:2015cv01453 - Document 5 (E.D. Cal. 2015)
Court Description: ORDER that Plaintiff's Complaint be Dismissed with 28 Days Leave to Amend; ORDER DENYING 3 Motion for Permission to Utilize Electronic Filing and Service; ORDER STRIKING 4 Motion for Summary Judgment. If Plaintiff fails to file an amended complaint, the Court will recommend that this action be dismissed for failure to state a cognizable claim. Order signed by Magistrate Judge Sheila K. Oberto on 10/13/2015. (Timken, A)
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Payne v. Publishers Clearing House Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KITTI RUTH PAYNE a/k/a KITTI RUTH POWER, Case No. 1:15-cv-01453---SKO ORDER THAT PLAINTIFF’S COMPLAINT BE DISMISSED WITH 28 DAYS LEAVE TO AMEND 12 Plaintiff, 13 v. 14 15 16 17 18 PUBLISHERS CLEARING HOUSE, INC. d/b/a PCH LOTTO a/k/a PUBLISHERS CLEARING HOUSE a/k/a PCH a/k/a THE CLEARING HOUSE Defendants. _____________________________________/ ORDER DENYING PLAINTIFF’S MOTION FOR PERMISSION TO UTILIZE ELECTRONIC FILING AND SERVICE ORDER STRIKING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Docs. Nos. 1, 3, 4) 19 20 I. 21 22 INTRODUCTION On September 25, 2015, Plaintiff Kitti Ruth Payne (“Plaintiff”), proceeding pro se and in 23 forma pauperis, filed this action against Publishers Clearing House, Inc. (“PCH”). (Doc. 1 24 (“Complaint”).) On September 29, 2015, Plaintiff filed a motion for summary judgment and a 25 motion seeking the Court’s leave to use the electronic case management/filing system 26 (“CM/ECF”). (Docs. 3; 4.) 27 For the reasons set forth below, and the Court ORDERS that Plaintiff’s Complaint be 28 DISMISSED without prejudice and with leave to amend, that Plaintiff’s motion for permission to Dockets.Justia.com 1 utilize electronic filing and service” be DENIED, and that Plaintiff’s motion for summary 2 judgment be STRICKEN from the docket. 3 4 II. PLAINTIFF’S COMPLAINT Plaintiff filed this action for damages against Defendant PCH, alleging claims for 5 negligence, “harm,” and fraud. (Compl., pp. 11-14.) So far as can be discerned from the 6 Complaint, Plaintiff alleges that PCH is liable for Plaintiff’s contact with an unnamed third party 7 that represented itself as PCH. (Compl.) Plaintiff states that she accessed the PCH website in 8 August of 2011, and played “PCH Lotto and Quickpics” on the website. (Compl., p. 5.) After 9 playing “online PCH Lotto,” on the evening of October 26, 2011, Plaintiff received an email from 10 “office@mail.com,” with subject line “You have won one million dollars.” (Compl., p. 5.) An 11 unauthenticated copy of the email is attached to the Complaint, reproduced in full as follows: 12 13 14 15 We are please [sic] to announce to you that your email address emerged along side [sic] 4 others as a category of two winner [sic] in this year [sic] Publishers Clearing House end of year online promo. Consequently, You [sic] have won one million dollars and therefore been approved for a total pay out of one million dollars ($1,000,000.00USD) [sic] The following particulars are attached to your lotto payment order: winning numbers : 1400 [sic] 16 email, ticket number:ETN9091176 [sic] 17 Please contact the underlined claims officer with the Contact info below 18 AGENT: MRS. Margaret Crossan [sic] 19 EMAIL: pch.lott.board@w.cn 20 Winner you are to send the details below to process the immediate payment> [sic] of your prize 21 1. Name in full: Kitti Ruth Payne 22 2. Address: 411 S Harrison Street Stockton, CA 95203 [sic] 3. Sex: Female 23 4. Nationality: Caucasian – Anglo Saxon 24 5. Age: 54 25 6: Present Country: USA !!!Once Again Congratulations!!! [sic] 26 Yours Sincerely, 27 Mr.Dave [sic] Sayer 28 ONLINE CO-ORDINATOR. 2 1 (Compl., Exh. 1.) It is unclear whether this is the actual email sent to Plaintiff, as her personal 2 information was filled in within the body of the email. (See Compl., Exh. 1.) 3 Plaintiff alleges she “really thought that [she] had won” because she had recently played 4 the “PCH Lotto,” the email “made no mention . . . that [she] would have to purchase anything or 5 pay a fee, transfer fees, mailing [sic], or send money for anything,” and she “had never received 6 any correspondence of this kind prior to the unique event of [ ] accessing and playing online PCH 7 Lotto and QuickPics.” (Compl., p. 5.) Further, because Plaintiff has “not been a patron of any 8 other business’ online Lotto at another website other than at PCH,” she “play[ed] directly off of the 9 PCH Lotto and QuickPics” website, and “[m]onetary giveaway is also included as within the 10 course of doing PCH business also of their website business [sic]” she became convinced of the 11 email’s authenticity. (Compl., p. 6.) “Because [she] really thought [she] had won,” on November 12 4, 2011, she “submitted” a completed “version of required Timely Affidavit of Eligibility (and E13 signature)” to “office@mail.com.” (Compl., Exh. 2.) 14 Plaintiff had been “in Formal Financial Hardship status with the [Internal Revenue Service 15 (“IRS”)] since the [y]ear of 2007,” and therefore “was excited about the winnings described within 16 the 10/26/2011 You Have Won Publishers Clearing House Lotto notification.” (Compl., pp. 2; 6.) 17 Plaintiff contacted and disclosed to the IRS “the series of events pertaining to any possibility of 18 income,” as required by “Reverse False Claims Section 3729(a)(1)(G).” (Compl., p. 7.) Plaintiff 19 has since contacted both PCH directly regarding the emailed notification, as well as the Attorney 20 Generals of the State of California, where Plaintiff resides, and New York State, where PCH is 21 based, and the Federal Trade Commission. (Compl., pp. 7-8.) 22 PCH contacted Plaintiff by letter on December 30, 2013, and informed Plaintiff that an 23 internal investigation had determined the email notification “from office@mail.com did not come 24 from the real Publishers Clearing House. The email is part of a scam operation which fraudulently 25 and illegally uses the Publishers Clearing House name.” (Compl., Exh. 4 (emphases in original).) 26 PCH provided contact information both PCH’s internal fraud department and to the National Fraud 27 Center and directed Plaintiff to report any further fraudulent notifications she received. (Compl., 28 Exh. 4.) Plaintiff alleges that this December 30, 2013, letter “contains PCH’s written statement 3 1 that PCH did have previous knowledge and is aware of an ongoing fraudulent[ ] and[ ] illegal 2 activity using the Publishers Clearing House name[.]” (Compl., p. 9.) 3 Plaintiff alleges that PCH is liable for payment of the winnings described in the notification 4 email sent to her from the “office@mail.com” email address on October 26, 2011. Plaintiff alleges 5 claims of negligence, “ongoing negligence,” “harm,” “ongoing harm,” fraud, and “ongoing fraud” 6 against PCH. (Compl., pp. 10-13.) Plaintiff demands the full sum of the winnings referenced in 7 the email notification and apparently plans to use this award to repay the money she owes to the 8 IRS. Compl., pp. 8 (stating her “intention is towards secure means in which to make income tax 9 payment which may possibly be of a material amount”); 13 (requesting an allocation of one10 quarter of the total award be paid to “the Government” and any remainder be paid to Plaintiff 11 directly).) Plaintiff also requests punitive damages be awarded against PCH in an amount not to 12 exceed $250,000.00, as well as two undefined awards as “Relatrix” “over-and-above such possible 13 total penalty amount” and “derived of possible monetary penalty resulting from any such possible 14 subsequent Court action(s) which may or may not be concurrent to this Civil Action[.]” (Compl., 15 pp. 13-14.) 16 17 III. PLAINTIFF’S REQUEST TO FILE ELECTRONICALLY Plaintiff seeks the Court's permission to file documents electronically through the 18 electronic case management/filing (“CM/ECF”) system. (Doc. 3.) Pursuant to the Local Rules, a 19 pro se party shall file and serve paper documents as required by the Rules. Local Rule 133(a). A 20 party appearing pro se may request an exception to the paper filing requirement from the court by 21 filing a stipulation of the parties or by motion. Local Rule 133(b)(2), (3). 22 Upon review of the pleadings in this action and the instant motion, the Court finds that this 23 action does not warrant an exception to the Local Rule. See Reddy v. Precyse Solutions LLC, No. 24 1:12-CV-02061-AWI-SAB, 2013 WL 2603413, at *3 (E.D. Cal. June 11, 2013). Accordingly, 25 Plaintiff’s motion for permission to file through CM/ECF is denied. 26 27 IV. MOTION FOR SUMMARY JUDGEMENT Plaintiff also asks the Court to grant summary judgment to “either further the interests of 28 judicial economy by reducing the time to be consumed in trial or significantly increase the ability 4 1 of the parties to resolve the case by settlement[.]” (Doc. 4.) The motion consists of a single block 2 paragraph requesting relief, with no reference to any supporting facts or arguments. (Doc. 4.) The 3 motion is procedurally deficient because no defendant has been served with either the complaint or 4 summons. The Court lacks personal jurisdiction over a defendant until the defendant has been 5 served. Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009). 6 Plaintiff’s motion for summary judgment is procedurally defective and shall be 7 STRICKEN from the docket. Because Plaintiff is proceeding in forma pauperis, the complaint 8 will be screened pursuant to 28 U.S.C. § 1915(e)(2) before service is permitted. 9 V. ANALYSIS 10 A. Screening Standard 11 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 12 each case, and must dismiss the case at any time if the Court determines that the allegation of 13 poverty is untrue, or the Court determines that the action or appeal is frivolous or malicious, fails 14 to state a claim upon which relief may be granted, or seeks monetary relief against a defendant 15 who is immune from such relief. 28 U.S.C. § 1915(e)(2). A claim is legally frivolous when it 16 lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); 17 Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a 18 claim as frivolous where it is based on an indisputably meritless legal theory or where the factual 19 contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a claim, 20 however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 21 F.2d 639, 640 (9th Cir.1989); Franklin, 745 F.2d at 1227. 22 A complaint must contain a “short and plain statement of the claim showing that the 23 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, 24 but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 26 Twombly, 550 U.S. 544, 555 (2007)). A complaint may not simply allege a wrong has been 27 committed and demand relief. The pleading standard “demands more than an unadorned, the28 defendant-unlawfully-harmed-me accusation[;]” the complaint must contain “sufficient factual 5 1 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 2 Twombly, 550 U.S. at 555, 570). Further, while factual allegations are accepted as true, legal 3 conclusions are not. Id. (quoting Twombly, 550 U.S. at 555). 4 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 5 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear 6 that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma 7 pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 8 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230. If the Court determines that the 9 complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies 10 of the complaint are capable of being cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 11 (9th Cir. 2000) (en banc). 12 B. 13 Plaintiff’s Complaint Fails to Allege a Plain and Concise Statement of the Elements of Her Claim 14 Under Fed. R. Civ. P. Rule 8, a plaintiff must “plead a short and plain statement of the 15 elements of his or her claim.” Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000). 16 “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. Rule 8(d)(1). Dismissal is 17 appropriate under Rule 8 where a complaint is “argumentative, prolix, replete with redundancy 18 and largely irrelevant.” McHenry v. Renne, 84 F.3d 1172, 1177, 1178-79 (9th Cir. 1996). See 19 also Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981) (affirming 20 dismissal of a “verbose, confusing and conclusory” complaint under Rule 8). “Something labeled 21 a complaint but . . . prolix in evidentiary detail, yet without simplicity, conciseness and clarity as 22 to whom plaintiff[ ] [is] suing for what wrongs, fails to perform the essential functions of a 23 complaint.” McHenry, 84 F.3d at 1180. Further, in evaluating whether a complaint should be 24 dismissed under Rule 8, dismissal does not turn upon whether “the complaint is wholly without 25 merit.” Id. at 1179. 26 Plaintiff’s Complaint fails to plead a short and plain statement of the elements of her claim 27 under Rule 8. Plaintiff’s Complaint is argumentative, prolix, and replete with redundant, 28 irrelevant details. See id. at 1178-79. Plaintiff is alleging she received a scam email from some 6 1 third party representing itself as an agent of PCH, she responded to this email with personal 2 identifying information, she erroneously believed that she had been contacted by PCH as a result 3 of this third-party contact, and she erroneously reported potential income to the IRS as a result of 4 this third-party contact. (See Compl.) 5 However, even liberally construed, Plaintiff’s Complaint does not contain “sufficient 6 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 7 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plaintiff fails to identify exactly how named 8 defendant PCH actually harmed her, in what manner and for what purpose PCH acted to harm her, 9 what wrong she is alleging occurred as a result of PCH’s acts or omissions, and what specific 10 harm she suffered as a result of that legal wrong. (See Compl.) The Court is also unable to 11 determine the nature or extent of Plaintiff’s damages, aside from what appears to be a demand for 12 PCH to pay her the $1,000,000.00 in winnings stated in the third-party notification email. (See 13 Compl., at pp. 13-14.) 14 Merely alleging a wrong has been committed and demanding relief is not enough to meet 15 the pleading standard set forth under Rule 8. See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 16 U.S. at 555 (the complaint must contain “more than an unadorned, the-defendant-unlawfully17 harmed-me accusation”)). Accordingly, Plaintiff’s Complaint is DISMISSED for failure to 18 comply with Rule 8 pleading standards. See McHenry, 84 F.3d at 1177-80. 19 C. Leave to Amend Is Granted 20 Plaintiff’s Complaint must be dismissed for failure to recite a plain and concise statement 21 of allegations under Fed. R. Civ. P. Rule 8. However, the Ninth Circuit has instructed that pro se 22 complaints “may only be dismissed ‘if it appears beyond doubt that the plaintiff can prove no set 23 of facts in support of his claim which would entitle him to relief.’” Nordstrom v. Ryan, 762 F.3d 24 903, 908 (9th Cir. 2014) (quoting Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)). See 25 also Noll, 809 F.2d at 1448; Franklin, 745 F.2d at 1230 (unless it is clear that no amendment can 26 cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice 27 and an opportunity to amend before dismissal). 28 // 7 1 Plaintiff’s complaint is DISMISSED without prejudice and with leave to amend. Plaintiff 2 will be given an opportunity to amend the deficiencies of the complaint as discussed above. 3 Plaintiff is advised that an amended complaint supersedes the original complaint. See 4 Lacey v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc). The amended 5 complaint must be “complete in itself without reference to the prior or superseded pleading.” 6 Rule 220 of the Local Rules of the United States District Court, Eastern District of California. 7 Once Plaintiff files an amended complaint, the original pleading no longer serves any function in 8 the case. Therefore, in an amended complaint, as in an original complaint, each claim and the 9 involvement of each defendant must be sufficiently alleged. If Plaintiff fails to file an amended 10 complaint or fails to cure the deficiencies identified above, the Court will recommend that the 11 complaint be dismissed with prejudice. 12 VI. CONCLUSION AND ORDER 13 For the reasons set forth above, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s complaint is DISMISSED with leave to amend; 15 2. Plaintiff shall file an amended complaint within twenty-eight (28) days from the 16 date of service of this order; 17 3. If Plaintiff fails to file an amended complaint, the Court will recommend that this 18 action be dismissed for failure to state a cognizable claim; 19 4. Plaintiff’s motion to use the Court’s electronic case management/filing system 20 (CM/ECF) is DENIED; and 21 5. Plaintiff’s motion for summary judgment is STRICKEN from the docket. 22 23 IT IS SO ORDERED. 24 Dated: October 13, 2015 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 8
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