1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARK E. VERNON, Case No.: 19cv2356-JAH (RBB)

12 Plaintiff,

ORDER:

13 v. 1. GRANTING PLAINTIFF’S 14 TESLA ENERGY; TESLA ENERGY

MOTION FOR LEAVE TO

OPERATIONS, INC.; SOLARCITY

15 PROCEED IN FORMA PAUPERIS

CORP., ROE CORPORATIONS,

[DOC. NO. 2]; AND 16 PARTNERSHIPS OR OTHER

BUSINESS ENTITIES 1-10, Inclusive, 17 2. DISMISSING THE COMPLAINT Defendants. PURSUANT TO 28 U.S.C. § 1915(e)(2) 18

19 On December 10, 2019, Mark E. Vernon (“Plaintiff”), proceeding pro se, filed a 20 complaint along with a motion for leave to proceed in forma pauperis (“IFP”), pursuant to 21 28 U.S.C. § 1915(a). See Doc. No. 2. After a careful review of the record and for the reasons 22 set forth below, the Court (1) GRANTS Plaintiff’s motion for leave to proceed IFP, [Doc. 23 No. 2]; and (2) DISMISSES the complaint, [Doc. No. 1], without prejudice for lack of 24 subject matter jurisdiction. 25

I. Plaintiff’s IFP Motion

26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 1 $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Courts grant leave to proceed IFP when 5 plaintiffs submit an affidavit, including a statement of all of their assets, showing the 6 inability to pay the statutory filing fee. See 28 U.S.C. § 1915(a). 7 In support of his IFP motion, Plaintiff has submitted an application to proceed in this 8 Court without paying fees or costs. See Doc. No. 2. The application indicates Plaintiff is 9 unemployed and receives $2,100.00 per month in disability benefits during the last twelve 10 months. Id. at 2. Plaintiff has one checking account with a balance of $220.00 and $150.00 11 in cash. Id. Additionally, Plaintiff receives no income from real property, investments, 12 retirement accounts, gifts, or alimony. Id. at 1. Plaintiff has one dependent and anticipates 13 no major changes to his income over the next twelve months. Id. at 4-5. 14 In accordance with the information presented, the Court finds the Plaintiff 15 adequately demonstrates his inability to pay the Court filing fee required to proceed with 16 the instant action. Therefore, the Court GRANTS the motion for leave to proceed IFP. 17 II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) 18 A. Standard of Review 19 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 20 any person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a 21 mandatory and sua sponte review and dismissal by the court to the extent it is “frivolous, 22 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary 23 relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. 24 Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) 25 are not limited to prisoners.”). “[S]ection 1915(e) not only permits, but requires, a district 26 court to dismiss an in forma pauperis complaint that fails to state a claim.” Lopez v. Smith, 27 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). 28 1 A court may also dismiss an action sua sponte at any time for lack of subject matter 2 jurisdiction. California Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 3 1974). In contrast to dismissals for failure to state a claim, if the court lacks subject matter 4 jurisdiction, it is not required to issue a summons or follow the other procedural 5 requirements. See Franklin v. State of Or., State Welfare Division, 662 F.2d 1337, 1342 6 (9th Cir. 1981). 7 B. Analysis 8 In Plaintiff’s complaint, he asserts state claims for negligence; intentional 9 misrepresentation; breach of contract; breach of implied covenant of good faith and fair 10 dealing; consumer fraud; and quantum meruit. Regarding jurisdiction, Plaintiff alleges this 11 Court’s subject matter jurisdiction arises from diversity pursuant to 28 U.S.C. § 1332. To 12 establish diversity jurisdiction, there must be: (1) complete diversity among opposing 13 parties; and (2) an amount in controversy exceeding $75,000, exclusive of interests and 14 costs. See 28 U.S.C. § 1332(a). Plaintiff has the burden of demonstrating jurisdiction by 15 showing “in his pleading, affirmatively and distinctly, the existence of whatever is essential 16 to federal jurisdiction.” Smith v. McCullough, 270 U.S. 456, 459 (1926). 17 Plaintiff alleges to have suffered actual damages “of an amount in excess of $30,000 18 to be shown by proof or proven at trial.” (Doc. No. 1). Although Plaintiff prays for various 19 other damages, including punitive damages and equitable relief, he has failed to plead 20 sufficient facts to support damages beyond the requested $30,000. The assertions made in 21 the complaint do not support the necessary threshold minimum of $75,000 to establish 22 diversity jurisdiction. Therefore, the Court lacks subject matter jurisdiction over the instant 23 action and the complaint is DISMISSED without prejudice. 24 // 25 // 26 // 27 // 28 // 1 || II. Conclusion and Order 2 The Court finds Plaintiff has failed to demonstrate the existence of diversity 3 || jurisdiction. Therefore, this Court lacks subject matter jurisdiction over the present case. 4 Based on the foregoing, the Court hereby: 5 1. GRANTS Plaintiff's Motion to Proceed IFP, pursuant to 28 U.S.C. § 6 1915(a) [Doc No. 2]; 7 2. DISMISSES Plaintiff's complaint without prejudice for lack of subject 8 matter jurisdiction. 9 IT IS SO ORDERED. 10 11 |}DATED: January 20, 2020 12 VU 13 IPN. JOHN A. HOUSTON 14 JNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28