1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHAWN HAWK, No. 2:23–cv–00049–KJM CKD PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS FOR LACK OF

13 v. SUBJECT MATTER JURISDICTION 14 FLIX NORTH AMERICA, INC., et al., 15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 The court finds that it lacks federal subject matter jurisdiction over the action. See United 21 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (noting the 22 federal court’s independent duty to ensure it has subject matter jurisdiction in the case). 23 Accordingly, the court recommends that the action be dismissed without prejudice, and that 24 plaintiff’s application to proceed in forma pauperis in this court be denied as moot. 25 /// 26 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 27 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. Resolution of dispositive matters by a magistrate judge are to be filed as findings and recommendations. See 28 Local Rule 304. 1 Legal Standards 2 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & fn. 7 3 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 4 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it 5 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31 6 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be 7 given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 8 The court must dismiss a case if, at any time, it determines that it lacks subject matter 9 jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has jurisdiction over a 10 civil action when: (1) a federal question is presented in an action “arising under the Constitution, 11 laws, or treaties of the United States” or (2) there is complete diversity of citizenship and the 12 amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). Further, a plaintiff 13 must have standing to assert a claim, which requires an injury in fact caused by defendant(s) that 14 may be redressed in court. Harrison v. Kernan, 971 F.3d 1069, 1073 (9th Cir. 2020). 15 Federal courts lack subject matter jurisdiction to consider claims that are “so insubstantial, 16 implausible, foreclosed by prior decisions of this court, or otherwise completely devoid of merit 17 as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 18 83, 89 (1998); Hagans v. Lavine, 415 U.S. 528, 537 (1974) (court lacks subject matter jurisdiction 19 over claims that are “essentially fictitious,” “obviously frivolous” or “obviously without merit”); 20 see also Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 549-50 (9th Cir. 2018) 21 (noting that the “wholly insubstantial and frivolous” standard for dismissing claims operates 22 under Rule 12(b)(1) for lack of federal question jurisdiction). A claim is legally frivolous when it 23 lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A 24 court may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory 25 or where the factual contentions are clearly baseless. Id. at 327; Rule 12(h)(3). 26 Analysis 27 Plaintiff names two defendants: Greyhound Lines, Inc. and its alleged parent company, 28 Flix North America. Plaintiff alleges that, on August 11, 2022, he paid cash for a round-trip 1 ticket on a Greyhound bus from Sacramento to Fresno. (ECF No. at 1 at 2.) When he presented 2 the receipt to the bus driver, the driver was unable to scan the receipt and did not accept the ticket, 3 causing plaintiff to purchase another round-trip ticket. (Id. at 3.) Later, Greyhound offered 4 plaintiff a refund check in the amount of $67.98, but plaintiff claimed this amount was 5 “insufficient to satisfy the dishonor of Defendants, and explained that the total amount of the 6 losses suffered by Plaintiff was $250,101.” (Id. at 4.) Plaintiff alleges that defendants’ breach of 7 contract resulted in a quarter-million dollar financial loss because the trip to Fresno involved 8 some unspecified business dealings. (Id. at 6.) 9 The court plainly does not have federal question jurisdiction over the action, because 10 plaintiff does not assert any federal claims against defendant. As to diversity jurisdiction, the 11 diversity statute is strictly construed, and any doubts are resolved against finding jurisdiction. 12 Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1092 (9th Cir. 1983). As plaintiff has alleged 13 no legal or factual basis for the claimed damages, the amount in controversy requirement plainly 14 cannot be met. See McDaniel v. Hinch, No. 2:17-cv-02448 KJM CKD (E.D. Cal.), Order dated 15 July 11, 2018 (“[W]ith no stated claim triggering either diversity or federal question jurisdiction, 16 the complaint is properly subject to dismissal for lack of jurisdiction. Fed. R. Civ. P 8(a)(2); 17 Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).”). 18 Therefore, the court recommends that the action be dismissed without prejudice for lack 19 of federal subject matter jurisdiction. 20 RECOMMENDATIONS 21 Accordingly, IT IS HEREBY RECOMMENDED that: 22 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be DENIED AS MOOT; 23 2. The action be DISMISSED for lack of subject matter jurisdiction; and 24 3. The Clerk of Court be directed to CLOSE this case. 25 These findings and recommendations are submitted to the United States District Judge assigned to 26 the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 27 being served with these findings and recommendations, plaintiff may file written objections with 28 the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 1 | Recommendations.” Plaintiff is advised that failure to file objections within the specified time 2 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 3 || (Oth Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 4 ORDER 5 In light of these recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 6 || discovery, and motion practice in this action are stayed pending resolution of these findings and 7 || recommendations. Other than objections to the findings and recommendations or non-frivolous 8 | motions for emergency relief, the court will not entertain or respond to any pleadings or motions 9 | until the findings and recommendations are resolved. 10 | Dated: April 4, 2023 fi se / bps ANI fe fo. AG " CAROLYNK.DELANEY 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 || 2hawk0049.dismiss no SMJ, IFP moot 18 19 20 21 22 23 24 25 26 27 28