1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GEORGE JARVIS AUSTIN, Case No. 20-cv-06229-AGT

8 Plaintiff,

SCREENING ORDER

v. 9 Re: Dkt. Nos. 1, 4 10 BUDGET RENTAL CAR, INC., Defendant. 11

12 Having granted George Jarvis Austin’s application to proceed in forma pauperis, the Court 13 now screens his complaint, pursuant to 28 U.S.C. § 1915(e)(2), and concludes that it is deficient in 14 several respects. The Clerk of the Court is accordingly instructed not to issue summonses or to 15 serve Austin’s complaint on the defendants. If Austin fails to file a satisfactory amendment, the 16 undersigned will recommend that a district judge dismiss his case. 17 * * * 18 1. Federal courts are required to sua sponte dismiss frivolous in forma pauperis complaints. 19 See 28 U.S.C. § 1915(e)(2)(B)(i). Falling under the umbrella of frivolous in this context are 20 complaints with allegations that “rise to the level of the irrational or the wholly incredible.” 21 Denton v. Hernandez, 504 U.S. 25, 33 (1992). Austin’s allegations against Budget Rental Car rise 22 to this level. 23 The complaint relies on news reports in which customers of a different rental-car company 24 alleged that the company mistakenly reported to police that the cars these customers had rented 25 were stolen, which resulted in these customers being stopped by police and arrested. See Compl. 26 at 17–18.1 Austin suggests that something similar happened to him, but his allegations are harder 27 1 to believe. 2 He alleges that he rented cars from Budget, that the cars he rented had been stolen by 3 Budget (not mistakenly reported as stolen), and that the owners of the cars (not the police) 4 observed him driving the cars and engaged in vigilantism—cutting him off at high speeds on the 5 freeway, pointing guns at him, rear-ending him on one occasion, and generally stalking him. See 6 Compl. at 12–14. 7 These are highly unusual allegations, in large part because they are based on exceedingly 8 low-probability events: that Budget, a well-known rental-car company, would steal cars and rent 9 them out; that Austin would rent one of these cars and the owner of the car would happen to see 10 him driving it; that the owner, instead of calling the police, would try to take the car back by force; 11 and that all of this would happen multiple times. 12 The allegations get even more incredible. Austin alleges that he eventually “noticed that 13 the people doing the stalking seemed to be getting rewarded with new cars,” Compl. at 15, 14 suggesting that the stalkers were part of a syndicate of some sort and were being incentivized to 15 stalk him. He also alleges that on one occasion a stalker stole a car from him, using a tow truck, 16 and then called Austin from Austin’s old cell-phone number. See id. at 16–17. 17 This narrative is incredible enough to suggest that it is not based on provable facts. 18 Whatever the cause, in consequence the claims against Budget cannot presently move forward. 19 2. Federal courts, in addition to screening for frivolousness, are also required to screen and 20 dismiss in forma pauperis complaints that fail to state a claim on which relief may be granted. See 21 28 U.S.C. § 1915(e)(2)(B)(ii). Austin’s allegations against the other defendants (Bank of 22 America, Capital One, Mastercard, and Visa), although much less incredible than his allegations 23 against Budget, fail to pass this second screening requirement. 24 He alleges that these financial-company defendants overbilled him, agreed to cancel his 25 credit cards but didn’t do so, and violated his privacy rights. Because of this conduct, he asserts 26 that these defendants breached contracts with him; acted negligently; and conspired to commit 27 fraud, to wrongly convert his property, and to engage in tortious interference with existing and 1 More detail is needed to plausibly state a claim for relief against any of these defendants, 2 and especially to state a claim for fraud. See Fed. R. Civ. P. 9(b); Kearns v. Ford Motor Co., 567 3 F.3d 1120, 1124 (9th Cir. 2009) (explaining that allegations of fraud “must be accompanied by the 4 who, what, when, where, and how of the misconduct charged”) (internal quotation marks omitted). 5 Critically, even for the non-fraud claims, Austin refers only to conduct by the “Financial 6 companies,” without explaining what each of these companies did. When defendants are separate 7 corporate entities, and perform separate roles (e.g., banks versus credit-card companies) this form 8 of group pleading is insufficient to state a claim for relief. See Gen-Probe, Inc. v. Amoco Corp., 9 926 F. Supp. 948, 961 (S.D. Cal. 1996) (“[L]umping together of multiple defendants in one broad 10 allegation fails to satisfy notice requirement of Rule 8(a)(2).” (citing Gauvin v. Trombatore, 682 11 F. Supp. 1067, 1071 (N.D. Cal. 1988))). 12 To be clear, what is needed is not a longer complaint. Austin’s complaint, not including 13 exhibits, is already ninety-eight pages long—much longer than what the federal rules of civil 14 procedure contemplate. See Fed. R. Civ. P. 8(a)(2) (“A pleading that states a claim for relief must 15 contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”). 16 What is needed is more factual detail. Rather than quoting judicial decisions at length, see Compl. 17 at 21–98, Austin needs to explain what each defendant did, and why what it did gives rise to an 18 actionable legal claim. Conclusory statements that lack a factual basis, see, e.g., id. at 22–23 19 (“Plaintiff entered into both express and implied contracts with Organizational Defendants”; 20 “Plaintiff, performed, and did all, and more, than the contract required”; “Defendants failed to 21 perform their duties . . . .”), are insufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A 22 pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of 23 action will not do. . . . [A] complaint must contain sufficient factual matter, accepted as true, to 24 state a claim to relief that is plausible on its face.”) (internal quotation marks omitted). 25 Because Austin hasn’t sufficiently alleged an actionable claim against the financial- 26 company defendants, his case against them cannot proceed at this time. 27 3. Litigants who initiate lawsuits in federal court must identify the basis for federal subject- 1 complaints under § 1915(e)(2), have an independent duty to confirm that the stated basis for 2 jurisdiction is supported by the allegations, see Henderson ex rel. Henderson v. Shinseki, 562 U.S. 3 428, 434 (2011). Austin invokes two forms of federal subject-matter jurisdiction: federal question 4 and diversity. Neither is adequately supported by the allegations in his complaint. 5 Federal-question jurisdiction is present when one or more legal claims in the complaint 6 “aris[es] under” federal law. 28 U.S.C. § 1331. A claim arises under federal law in two scenarios: 7 (i) when federal law creates the claim asserted, and (ii) when a state-law claim necessarily raises a 8 federal issue that is actually disputed and substantial, and that may be considered by a federal 9 court without disrupting the congressionally approved balance between federal and state courts. 10 See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 136 S. Ct. 1562, 1569–70 (2016). 11 Austin hasn’t established that either of these standards is met. All claims enumerated in 12 his complaint (e.g., for breach of contract, negligence, fraud) were created by state law, not federal 13 law. And although he suggests in passing that certain defendants may have also violated federal 14 privacy rules in handling his financial information, see Compl. at 21, he hasn’t enumerated a legal 15 claim based on those rules, and he hasn’t suggested that those rules would necessarily need to be 16 interpreted to resolve his state-law claims. Federal-question jurisdiction is currently lacking. 17 As for diversity, for this form of jurisdiction to apply the case must be between “citizens of 18 different States” and the amount in controversy must “exceed[] the sum or value of $75,000.” 19 28 U.S.C. § 1332(a). Complete diversity is required to meet the first of these requirements, 20 meaning that “each plaintiff must be of a different citizenship from each defendant.” Grancare, 21 LLC v. Mills ex rel. Thrower, 889 F.3d 543, 548 (9th Cir. 2018). 22 Austin, as “[t]he party seeking to invoke the district court’s diversity jurisdiction,” bears 23 the burden of pleading complete diversity. NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 613–14 24 (9th Cir. 2016). He hasn’t satisfied this burden. He names five defendants but includes 25 citizenship allegations for only one of them, Budget. See Compl. at 11, 22. And even for Budget, 26 his citizenship allegations are incomplete. Austin must identify the state where Budget is 27 incorporated (which he has done) and also the state where Budget has its principal place of 1 the other defendants’ citizenship, Austin cannot satisfy his burden of pleading complete diversity. 2 On the current record, federal subject-matter jurisdiction hasn’t been established. 3 Oe Ok 4 The undersigned concludes that Austin’s allegations against Budget are frivolous, that his 5 allegations against Bank of America, Capital One, Mastercard, and Visa fail to state a claim for 6 || relief, and that his allegations in support of federal subject-matter jurisdiction are insufficient. For 7 these reasons, he cannot currently proceed with litigating his case. 8 Austin has leave to file an amended complaint, by October 30, 2020, to correct the 9 identified shortcomings. If he doesn’t file an amended complaint by that date, or if his amended 10 || complaint is still deficient, the undersigned will recommend that a district judge dismiss his case. 11 Austin is encouraged to visit the Northern District of California’s website, where he can 12 || obtain information and resources about appearing pro se. See U.S. District Court, N.D. Cal., 13 Representing Yourself, https://cand.uscourts.gov/pro-se-litigants/.

IT IS SO ORDERED.

3 15 Dated: September 17, 2020 16

de

ALEX G. TSE

Z 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28