# (PS) Tobey v. Schmitt

> District Court, E.D. California · May 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10019048

## Case

- **Court:** District Court, E.D. California
- **Decided:** May 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 JONATHAN TOBEY, et al., No. 2:20-cv-00477-JAM-KJN PS
12 Plaintiffs, ORDER GRANTING IFP REQUEST AND
DISMISSING WITH LEAVE TO AMEND
13 v.
(ECF Nos. 2, 3 )
14 RICK SCHMITT et al.,
15 Defendants.
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17 Plaintiffs, who proceed without counsel in this action, have requested leave to proceed in
18 forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF Nos. 2, 3.) Plaintiffs’ application in support
19 of their request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915.
20 Accordingly, the court grants plaintiffs’ request to proceed in forma pauperis.
21 The determination that a plaintiff may proceed in forma pauperis does not complete the
22 required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any
23 time if it determines that the allegation of poverty is untrue, or if the action is frivolous or
24 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against
25 an immune defendant.
26 A federal court has an independent duty to assess whether federal subject matter
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1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C.
28 § 636(b)(1).
1 jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v.
2 Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had a duty
3 to establish subject matter jurisdiction over the removed action sua sponte, whether the parties
4 raised the issue or not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996).
5 The court must sua sponte dismiss the case if, at any time, it determines that it lacks subject
6 matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has original
7 jurisdiction over a civil action when: (1) a federal question is presented in an action “arising
8 under the Constitution, laws, or treaties of the United States;” or (2) there is complete diversity of
9 citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a).
10 A frivolous federal claim cannot confer subject matter jurisdiction on the district court.
11 Baker v. Carr, 369 U.S. 186, 199 (1962). A complaint is frivolous if it lacks an arguable basis
12 either in law or in fact. Cf. Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989) (construing 28
13 U.S.C. § 1951(d)); Franklin v. Murphy, 745 F.2d 1221, 1227–28 (9th Cir.1984) (same). The term
14 “‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, but
15 also the fanciful factual allegation.” Cf. Neitzke, 109 S.Ct. at 1831 (footnote omitted).
16 In this case, plaintiffs assert that the court has federal question jurisdiction over their
17 complaint. However, plaintiffs point to no federal law, treaty, or provision of the Constitution
18 that would grant this court jurisdiction. While plaintiffs do state that defendants committed “false
19 advertistemnt of services, defamation of character, [and] discrimination of disabled persons,”
20 which presumably could entitle plaintiffs to relief under a federal statute, plaintiffs provide no
21 additional statement of their claim. (See ECF No. 1.) Thus, plaintiffs’ recital of causes of
22 action—which are mostly state claims—without any factual underpinning amounts to a complaint
23 that does not confer federal question jurisdiction to this court.
24 Therefore, plaintiffs’ complaint does not state a cognizable federal claim sufficient to
25 invoke the court’s federal question jurisdiction. Furthermore, there is no diversity of citizenship
26 jurisdiction, because plaintiffs and defendants are all citizens of California. Consequently, the
27 court lacks federal subject matter jurisdiction over this action.
28 Accordingly, the court dismisses plaintiffs’ complaint, but with leave to amend. If
MASS 2 CUVETTES ENINTT INGEN RAMU POO Oe OY VI

1 | plaintiffs elect to file an amended complaint, it shall be clearly captioned “First Amended
2 | Complaint” and shall cure the jurisdictional deficiencies identified above. Plaintiffs are informed
3 | that the court cannot refer to a prior complaint or other filing in order to make plaintiffs’ first
4 | amended complaint complete. Local Rule 220 requires that an amended complaint be complete
5 | in itself without reference to any prior pleading. As a general rule, an amended complaint
6 | supersedes the original complaint, and once the first amended complaint is filed, the original
7 | complaint no longer serves any function in the case.
8 Finally, nothing in this order requires plaintiffs to file a first amended complaint. If
9 | plaintiffs conclude that they are unable to cure such federal jurisdictional deficiencies, they may
10 | instead elect to file an action in state court.
11 Accordingly, IT IS HEREBY ORDERED that:
12 1. Plaintiffs’ motions to proceed in forma pauperis (ECF No. 2, 3) are granted.
13 2. Plaintiffs’ complaint is dismissed, but with leave to amend.
14 3. Within 28 days of the date of this order, plaintiffs shall file a first amended complaint
15 in accordance with this order. Alternatively, if plaintiffs no longer wish to pursue this
16 action in federal court, plaintiffs shall file a notice of voluntary dismissal of the action
17 without prejudice within 28 days of the date of this order.
18 4. Failure to file either a first amended complaint or a notice of voluntary dismissal
19 without prejudice by the required deadline may result in dismissal of the action with
20 prejudice pursuant to Federal Rule of Civil Procedure 41(b).
21 IT IS SO ORDERED.
22 | Dated: May 7, 2020
3 Aectl Aharon
24 KENDALL J. NE
stobey.477 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10019048. Public record. Not legal advice.