Newman et al v. Caliber Home Loans, Inc., No. 3:2016cv02053 - Document 3 (S.D. Cal. 2016)
Court Description: ORDER granting 2 Motion to Proceed in forma pauperis and Dismissing without Prejudice Plaintiffs' Complaint. The Court 1. grants Plaintiff's Motion to Proceed IFP pursuant to § 1915(a), (ECF No. 2), and; 2. dismisses without prejudic e Plaintiff's Complaint. Plaintiff may file an amended complaint within thirty days of the date on which this Order is electronically docketed. Should Plaintiff fail to file an amended complaint within the time provided, the Court will enter a final order dismissing this civil action with prejudice. Signed by Judge Janis L. Sammartino on 9/30/2016. (All non-registered users served via U.S. Mail Service)(kcm)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NEWMAN, et al., Case No.: 16cv2053-JLS (NLS) Plaintiffs, 12 13 14 ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING WITHOUT PREJUDICE PLAINTIFFS’ COMPLAINT v. CALIBER HOME LOANS, INC., Commissioner of Social Security, 15 Defendant. 16 (ECF No. 2) 17 18 Presently before the Court is Plaintiffs Perlita and George Newman (the 19 “Newmans”)’ Motion to Proceed In Forma Pauperis (“IFP”). (IFP Mot., ECF No. 2.) 20 Plaintiffs assert various claims stemming from Defendant Caliber Home Loans’ alleged 21 foreclosure of Plaintiffs’ property. 22 IFP MOTION 23 All parties instituting any civil action, suit or proceeding in a district court of the 24 United States, except an application for writ of habeas corpus, must pay a filing fee of 25 /// 26 /// 27 /// 28 1 16cv2053-JLS (NLS) 1 $400.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A federal court 4 may authorize the commencement of an action without the prepayment of fees if the party 5 submits an affidavit, including a statement of assets, showing that he is unable to pay the 6 required filing fee. 28 U.S.C. § 1915(a). 7 Here, Plaintiff George Newman filed an affidavit stating that he and his spouse have 8 a combined monthly income of $1,900, based exclusively off of retirement disbursements, 9 and $2,000 in cash. (IFP Mot. at 2.) The only other asset the affidavit lists is a $25,000 10 mobile home. (Id.) In juxtaposition, the affidavit indicates monthly expenses totaling 11 $1,615.2 Given the foregoing, the Court concludes that Plaintiff’s application demonstrates 12 that he is unable to pay the requisite fees and costs. See, e.g., Jefferson v. United States, 13 277 F.2d 723, 725 (9th Cir. 1960) (“One need not be absolutely destitute to obtain [the] 14 benefits of the in forma pauperis statute.”); Escobedo v. Applebees, 787 F.3d 1226, 1235 15 (9th Cir. 2015) (noting “there is no formula set forth by statute, regulation, or case law to 16 determine when someone is poor enough to earn IFP status,” but, “[w]hatever the standard, 17 $350 is a lot of money to many millions of Americans”). Accordingly, the Court GRANTS 18 Plaintiff’s Motion to Proceed IFP. (ECF No. 3.) 19 /// 20 /// 21 /// 22 23 24 25 26 27 28 1 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 2 The affidavit breaks down the monthly expenses as $710 for rent or home-mortgage payments; $200 for utilities; $30 for home maintenance; $600 for food; $30 for transportation; $30 for recreation; $20 for homeowner’s or renter’s insurance; and $25 for life insurance. (Id. at 4–5.) Combined, this amounts to $1,645—$30 more than Plaintiff indicates in the total monthly expenses column on the affidavit; however, crediting either in the positive or the negative the $30 discrepancy between Plaintiff’s total and the sum of the individual expenses would not ultimately affect the Court’s determination regarding IFP status. 2 16cv2053-JLS (NLS) 1 Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 2 The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) 3 and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief 4 may be granted,” or “seeks monetary relief against a defendant who is immune from relief.” 5 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 6 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. 7 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) 8 “not only permits but requires a district court to dismiss an in forma pauperis complaint 9 that fails to state a claim”). 10 As amended by the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(e)(2) 11 mandates that the court reviewing an action filed pursuant to the IFP provisions of § 1915 12 make and rule on its own motion to dismiss before directing the Marshal to effect service 13 pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. R. Civ. P. 4(c)(3); Navarette 14 v. Pioneer Med. Ctr., No. 12CV0629 WQH DHB, 2013 WL 139925, at *1 (S.D. Cal. Jan. 15 9, 2013). 16 All complaints must contain a “short and plain statement of the claim showing that 17 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 18 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 19 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 20 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a 21 complaint states a plausible claim is context-specific, requiring the reviewing court to draw 22 on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550 23 U.S. at 556). In addition, the Court must liberally construe a pro se litigant’s pleadings. 24 See Haines v. Kerner, 404 U.S. 519, 521–22 (1972). 25 “When there are well-pleaded factual allegations, a court should assume their 26 veracity, and then determine whether they plausibly give rise to an entitlement of relief.” 27 Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court 28 must accept as true all allegations of material fact and must construe those facts in the light 3 16cv2053-JLS (NLS) 1 most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see 2 also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152 3 F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the 4 language of Federal Rule of Civil Procedure 12(b)(6).”). However, “the Court need not 5 accept as true “legal conclusions” contained in the complaint. Iqbal, 556 U.S. at 667. Nor 6 may the Court “supply essential elements of the claim that were not initially pled.” See 7 Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “[W]here the 8 well-pleaded facts do not permit the court to infer more than the mere possibility of 9 misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 10 entitled to relief.’” Id. at 678. 11 In the present case, Plaintiffs request “the voiding, and dismissal, of the foreclosure 12 on their property, due to the lack of standing, by the Defendant.” (Compl. at 1.) It appears 13 that the crux of Plaintiffs’ argument is that Plaintiffs’ original lender—Guild Mortgage 14 Company—transferred the underlying Deed of Trust and promissory note to Defendant 15 without notifying Plaintiff of the transfer, and that Plaintiffs were not sufficiently apprised 16 of the subsequent notice of default and notice of sale. (See Compl. at 3.) Plaintiff further 17 argues that the Defendant has “not only violated the Plaintiffs’ Civil Rights, guaranteed 18 under the Constitution of the United States of America, but that the Defendant has violated 19 . . . every rule of law, under Federal and State laws, governing real estate foreclosures.” 20 (Compl. at 4.) 21 Even taking Plaintiffs’ allegations as true, the Court concludes that the complaint 22 currently fails to state a legal claim upon which relief can be granted. Merely asserting 23 that the Defendant violated Plaintiffs’ rights generally under the Constitution and federal 24 and state law governing real estate foreclosures is not sufficient to apprise either the Court 25 or the named Defendant as to the claims at issue in this case. Plaintiffs would need to, at 26 /// 27 /// 28 /// 4 16cv2053-JLS (NLS) 1 a minimum, list specific statutory or constitutional provisions Defendant violated in order 2 to cure this deficiency.3 3 The Court further notes that it is not clear that subject matter jurisdiction exists over 4 Plaintiffs’ action. Diversity of citizenship jurisdiction under 28 U.S.C. § 1332 exists when 5 all plaintiffs are diverse from all defendants, Owen Equip. & Erection Co. v. Kroger, 437 6 U.S. 365, 373 (1978), and the amount “in controversy exceeds the sum or value of 7 $75,000,” 28 U.S.C. § 1332. Here, Plaintiff has pled no facts regarding the amount in 8 controversy requirement, and thus diversity of citizenship jurisdiction is not established. 9 “Absent diversity of citizenship, federal-question jurisdiction is required.” 10 Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Federal question jurisdiction exists 11 with “all civil actions arising under the Constitution, laws, or treaties of the United States.” 12 28 U.S.C. § 1331. “The presence or absence of federal-question jurisdiction is governed 13 by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only 14 when a federal question is presented on the face of the plaintiff’s properly pleaded 15 complaint.” Caterpillar, 482 U.S. at 392 (citing Gully v. First Nat’l Bank, 299 U.S. 109, 16 112–13 (1936)). “A ‘bare citation to’ federal statutes or the U.S. Constitution fails to 17 establish the requisite subject matter jurisdiction.” Levy v. Ryan Seacrest Prods., No. 2:13- 18 CV-0070 KJM KJN, 2013 WL 418291, at *4 (E.D. Cal. Jan. 30, 2013) (citing Denton v. 19 Agents of Or., No. 3:12-CV-00022-HZ, 2012 WL 6617389, at *2 (D. Or. Dec. 19, 2012)). 20 In the present case, Plaintiffs’ complaint merely states that the Court has jurisdiction 21 because the Plaintiffs’ civil rights “under the Constitution of the United States of America” 22 have been violated. As established by the case law cited above, this is plainly insufficient 23 to validly plead subject matter jurisdiction. 24 /// 25 26 3 27 28 Plaintiffs are further cautioned that merely listing a specific Constitutional provision may also be insufficient. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (noting that Fourteenth Amendment may only be violated by conduct that “may fairly be characterized as ‘state action’” (emphasis added)). 5 16cv2053-JLS (NLS) 1 CONCLUSION 2 For the reasons stated above, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to § 1915(a), (ECF No. 2), 4 and; 5 2. DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint. Plaintiff MAY 6 FILE an amended complaint within thirty days of the date on which this Order is 7 electronically docketed. Should Plaintiff fail to file an amended complaint within the time 8 provided, the Court will enter a final order dismissing this civil action with prejudice. 9 10 IT IS SO ORDERED. Dated: September 30, 2016 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 16cv2053-JLS (NLS)
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