Grimes v. A1-Auto Care

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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12 JEROME L. GRIMES, an individual, Case No.: 21cv02093-LL-BLM

13 Plaintiff,

14 ORDER:

v.

15 (1) DENYING IN FORMA

A1-AUTO CARE, a California limited PAUPERIS MOTION AS MOOT

16 liability company; S & R TOWING, INC., (2) DISMISSING COMPLAINT

a California corporation; CARLSBAD

17 [ECF Nos. 1, 2]

AUTO SERVICE, INC., a California

18 limited liability company; WAYNE

MILACK,

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Defendant.

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I. INTRODUCTION

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Presently before the Court is the Motion to Proceed In Forma Pauperis (“IFP”) of

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Plaintiff Jerome L. Grimes, an individual (“Plaintiff”). ECF No. 2 (“Mot.”). Plaintiff,

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proceeding pro se,1 alleges that Defendants A1-Auto Care, Inc., a California corporation

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1 In reviewing the instant motion, the Court is mindful that “[a] document filed pro se is to

27 be liberally construed … and a pro se [pleading], however inartfully pleaded, must be held

to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

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1 (“A1-Auto”); S & R Towing, Inc., a California corporation (“S & R”); Carlsbad Auto

2 Service, Inc., a California corporation (“CAS”); and Wayne Milack (collectively,

3 “Defendants”)2 attempted to commit manslaughter by covertly replacing his vehicle

4 transmission while it was in a tow yard. See generally ECF No. 1 (“Complaint” or

5 “Compl.”). Having considered carefully Plaintiff’s Complaint, IFP Motion, and the

6 applicable law, the Court (1) DENYING Plaintiff’s Motion to Proceed IFP as moot and

7 (2) DISMISSES the Complaint without prejudice.

8 II. BACKGROUND

9 A. Statement of Facts

10 Plaintiff, a Florida citizen and resident, alleges that he has a B.A. and M.B.A.

11 Compl. at ¶ 3A. He also pleads that he is a Ph.D. graduate student in psychology at NCU

12 online. Id.

13 On September 20, 2021, the Carlsbad Police Department arrested Plaintiff. Compl.

14 at 18. Due to his arrest, Plaintiff’s 2018 SUV, Vehicle Identification Number

15 3N1CPSCU9JL524677 (the “Vehicle) was stored pursuant to California Vehicle Code

16 section 22651(h)3 using S&R Towing. Id. at 3, 18. The exhibit to his complaint shows

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Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005).

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2 Plaintiff inconsistently alleged each defendant’s entity status in the complaint (e.g.,

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Plaintiff alleged each entity was a limited liability corporation rather than a corporation or

20 limited liability company and did not allege the residency of each member of any alleged

limited liability company). See Compl. at 2, ¶¶ 2A-2D. Because the corporate entity is

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relevant to whether Plaintiff adequately alleged diversity jurisdiction, the Court takes

22 judicial notice, sua sponte, of the publicly available facts regarding each entity’s status

from the California Secretary of State’s website. See Fed. R. Evid. 201(c)(1) (allowing

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courts to take judicial notice sua sponte); L’Garde, Inc. v. Raytheon Space and Airborne

24 Sys., 805 F. Supp. 2d 932, 937-38 (C.D. Cal. 2011) (taking judicial notice of records from

the California Secretary of State website); see also https://www.sos.state.co.us/ucc/pages

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/biz/bizSearch.xhtml (showing Defendants’ corporate statuses). These records also show

26 that while Plaintiff alleges Wayne Milack is a limited liability company, he is, in fact, an

individual as well as the agent for service of process for CAS.

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3 This provision allows a peace officer “who is engaged in directing traffic or enforcing

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1 that he was transported to the Vista Detention Facility, where he was booked under an

2 Orange County, Florida warrant. Id. Plaintiff was required to pay $363.00 in towage

3 storage fees to S & R in order to retrieve his Vehicle. Id. at 5, ¶ 7A.

4 Plaintiff alleges that while his Vehicle was in S & R’s tow yard, the neighboring

5 auto repair shops, A1-Auto and CAS, used “[c]overt [r]emote [c]ontrol … [attempted]

6 Vehicular Manslaughter, i.e., [an] Automobile Accident Rouse Masquerade ILLEGALLY

7 INDUCED By An UNAUTHORIZED REMOTE CONTROL TRANSMISSION

8 ‘ILLEGALLY’ INSTALLED ONTO THE PLAINTIFF’S 2018-AUTOMOBILE WITH

9 COVERT TRANSPORTATION VEHICLE TERROR INTENT.” Compl. at 4, ¶ 6A.

10 On September 21, 2021, Plaintiff retrieved his Vehicle and alleges “the Wheel Hub

11 Bearing ‘immediately’ went-out LULLING the ‘Detection’ of the ‘[i]llegally and

12 maliciously [i]nstalled’ REMOTE CONTROL TRANSMISSION.” Compl. at 4, ¶ 7A.

13 Between September 2021 and October 17, 2021, he pleads that he had to have his front

14 right wheel hub repaired for $200.00. Id. at 5. Further, from October 8, 2021 to October

15 17, 2021, Plaintiff’s Vehicle became inoperable. Id. at 4-5, ¶ 7A.

16 On November 16, 2021, Plaintiff detected the allegedly illegally installed remote

17 control transmission through “near swoop & swap diesel truck simultaneous transmission

18 remote control premeditated malfunction rouse on Highway 78/(freeway).” Compl. at 5, ¶

19 7A. Plaintiff alleges that to date, the Vehicle remains inoperable. Id. at 5, ¶ 8A.

20 B. Procedural History

21 On December 13, 2021, Plaintiff filed his complaint alleging three claims for relief

22 for (1) declaratory relief regarding negligence and general liability insurance coverage; (2)

23 an “individual claim” against Defendants for failing to provide duty to a visitor; and (3) an

24 individual civil rights claim. Compl. at 13-15, ¶¶ 17A-21A. That same day, Plaintiff also

25 filed the instant IFP motion. ECF No. 2.

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vehicle …. [i]f an officer arrests a person driving … a vehicle for an alleged offense and

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the officer is … required or permitted to take … the person into custody.” Cal. Veh. Code

28 § 22651(h)(1).

1 III. DISCUSSION

2 The Court is obligated to screen all cases filed IFP pursuant to 28 U.S.C. §

3 1915(e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2002) (per curiam)

4 (holding 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners proceeding IFP); see

5 also Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28

6 U.S.C. § 1915(e)(2)). Under this statute, the Court must sua sponte dismiss a complaint,

7 or any portion of it, that (1) is frivolous, malicious, (2) fails to state a claim, or (3) seeks

8 damages from defendants who are immune. See Lopez, 203 F.3d at 1126–27; see also 28

9 U.S.C. § 1915(e)(2)(B). Courts “may consider facts contained in documents attached to

10 the complaint” to determine whether the complaint states a claim for relief. Nat’l Assoc.

11 for the Advancement of Psychoanalysis v. Cal. Bd. of Psychol., 228 F.3d 1043, 1049 (9th

12 Cir. 2000). The screening mechanism serves “to discourage the filing of, and waste of

13 judicial and private resources upon, baseless lawsuits that paying litigants generally do not

14 initiate because of the costs of bringing suit.” Neitzke v. Williams, 490 U.S. 319, 327

15 (1989), abrogated on other grounds in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563

16 (2007).

17 As set forth below, the Court addresses the screening of Plaintiff’s complaint first

18 and finds the complaint fails to state a claim for relief. Because the Court dismisses

19 Plaintiff’s complaint without prejudice, the Court also DENIES Plaintiff’s IFP motion

20 without prejudice as moot.

21 A. Screening Pursuant to 28 U.S.C. § 1915(e)(2)

22 “The language of § 1915(e)(2)(B)(ii)” governing dismissal of frivolous IFP cases,

23 “parallels the language of Federal Rule of Civil Procedure 12(b)(6).” Barren v.

24 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Yet, “frivolousness” within the meaning

25 of the IFP standard and failure to state a claim under Rule 12(b)(6) of the Federal Rules of

26 Civil Procedure (“Rule 12(b)(6)”) remain distinct concepts. See Deschamps v. City of

27 Sausalito, No. 22-cv-00928-LB, 2022 U.S. Dist. LEXIS 31149, at *5, 2022 WL 521457,

28 at *2 (N.D. Cal. Feb. 16, 2022), report and recommendation adopted in part, rejected in

1 part on other grounds, 2022 WL 528105 (N.D. Cal. Feb. 22, 2022). When a court

2 considers whether a complaint states a claim upon which relief can be granted under Rule

3 12(b)(6), the court is not only limited to the face of the complaint, see Van Buskirk v. Cable

4 News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002), but it must also accept the factual

5 allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s

6 favor, Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). When a court

7 evaluates whether a pro se complaint qualifies as frivolous under 28 U.S.C. §

8 1915(e)(2)(B)(i), on the other hand, it may “pierce the veil of the complaint’s factual

9 allegations” and need not “accept without question the truth of the plaintiff’s factual

10 allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Neitzke, 490 U.S. at

11 325).

12 “[A] court may dismiss a claim as factually frivolous only if the facts alleged are

13 clearly baseless, a category encompassing allegations that are fanciful, fantastic, and

14 delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal quotations and

15 citations omitted) (quoting Neitzke, 490 U.S. at 325, 327-28). The Supreme Court has

16 expressly “decline[d] the invitation to reduce the ‘clearly baseless’ inquiry to a monolithic

17 standard,” instead leaving it to the discretion of district courts, suspecting they would “‘all

18 too familiar’ with [such] factually frivolous claims.” Denton v. Hernandez, 504 U.S. 25,

19 33 (1992) (quoting Neitzke, 490 U.S. at 328). However, it has set forth the following

20 insight into when courts should dismiss on the basis of frivolousness:

21 [A] finding of factual frivolousness is appropriate when the facts

22 alleged rise to the level of the irrational or the wholly incredible,

whether or not there are judicially noticeable facts available to

23 contradict them. An in forma pauperis complaint may not be

24 dismissed, however, simply because the court finds the

plaintiff’s allegations unlikely. Some improbable allegations

25 might properly be disposed of on summary judgment, but to

26 dismiss them as frivolous without any factual development is to

disregard the age-old insight that many allegations might be

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“strange, but true; for truth is always strange, Stranger than

28 fiction.”

1 Denton, 504 U.S. at 33; see also Hernandez v. Denton, 966 F.2d 533, 533 (9th Cir. 1992).

2 Rule 8 of the Federal Rules of Civil Procedure (“Rule 8”) requires that for a pleading

3 to state a claim for relief, it must contain the following elements:

4 (1) a short and plain statement of the grounds for the court’s

jurisdiction, unless the court already has jurisdiction and the

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claim needs no new jurisdictional support;

6 (2) a short and plain statement of the claim showing that the

pleader is entitled to relief; and

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(3) a demand for the relief sought, which may include relief in

8 the alternative or different types of relief.

9 Fed. R. Civ. P. 8(a).

10 As set forth below, the Court finds that Plaintiff’s complaint warrants screening

11 under Rule 8(1) and (2). The Court addresses whether the complaint states a claim under

12 Rule 8(a)(2) first.

13 1. Plaintiff has Failed to State a Claim for Relief

14 Plaintiff’s claims, although difficult to decipher, appear to allege a conspiracy to

15 fraudulently install a transmission in his Vehicle while it was in a towing yard for the

16 purpose of attempting to kill him. Compl. at 4, ¶ 6A. To the extent Plaintiff’s complaint

17 alleges criminal actions, such as “grand theft” and “attempted vehicular manslaughter,” see

18 id., such criminal claims may not be pursued in a civil lawsuit. But see United States v.

19 Duran, 41 F.3d 540, 544 (9th Cir. 1994) (“If the prosecutor has probable cause to believe

20 a defendant committed a crime, the decision of whether to prosecute and the charges to be

21 filed rests with the prosecutor.”). To the extent Plaintiff intends to allege other claims for

22 relief, as set forth below, the Court finds those other claims also fail to state sufficient facts

23 to state a claim for relief under Rule 8.

24 a. First Claim for Relief

25 Plaintiff’s First Claim for Relief seeks declaratory relief against defendants for fraud,

26 alleging that “[D]efendants are covered in their general liability insurance policy, and

27 provides personal injury, i.e., grand theft of … [his] TRANSMISSION.” Compl. at 13, ¶

28 14A. He pleads this claim “is an action for declaratory relief … pursuant to 28 U.S.C.

1 Personal Property Tort Other Fraud, identified as 370 on the Civil Cover Sheet JS44 Form.”

2 Compl. at 13, ¶ 14A. The form he refers to, which is the Southern District’s Civil Case

3 Cover Sheet, lists options for the “Nature of Suit,” and under torts against personal

4 property, 370 is listed for “Other Fraud.” ECF No. 1-1. In an effort to liberally construe

5 his complaint, see Pardus, 551 U.S. at 94, and given it is labeled as a declaratory relief

6 claim but also references insurance coverage, the Court liberally construes this claim as

7 either a claim for declaratory relief, fraud, or bad faith. In either scenario, the claim fails.

8 i. Declaratory Relief

9 If Plaintiff means to plead a claim for declaratory relief, his complaint fails to allege

10 sufficient facts. The Declaratory Judgments Act of 1934 provides that “[i]n a case of actual

11 controversy within its jurisdiction, . . . any court of the United States, upon the filing of an

12 appropriate pleading, may declare the rights and other legal relations of any interested party

13 seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. §

14 2201(a). Courts may grant declaratory relief “(1) when the judgment will serve a useful

15 purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate

16 and afford relief from the uncertainty, insecurity, and controversy giving rise to the

17 proceeding.” Bilbrey by Bilbrey v. Brown, 738 F.2d 1462, 1470 (9th Cir. 1984); see also

18 Nev. Deanza Family Ltd. P’ship v. Tesoro Ref. & Mktg. LLC, 474 F. Supp. 3d 1087, 1096-

19 97 (N.D. Cal. 2020). A controversy sufficient to warrant declaratory relief arises where

20 “there is a ‘substantial controversy, between parties having adverse legal rights, or

21 sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’”

22 Valley View Health Care, Inc. v. Chapman, 992 F. Supp. 2d 1016, 1041 (E.D. Cal. 2014)

23 (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).

24 Here, Plaintiff has not alleged facts indicating that he and Defendants have adverse

25 interests, such as by pleading that he submitted a claim for damages to them, which they

26 denied. He also fails to allege facts indicating that a declaratory relief judgment would

27 settle the relations between the parties. Bilbrey, 738 F.2d at 1470. Thus, to the extent

28 Plaintiff intended to state a claim for relief for declaratory relief, he has failed to plead

1 sufficient facts to do so.

2 ii. Bad Faith

3 To the extent Plaintiff’s claims all allege that Defendants have commercial general

4 liability insurance, see Compl. at 13-15, ¶¶ 14A, 17A, 21A, and he may have intended to

5 plead a bad faith claim against Defendants’ insurers (if any), that claim fails as well. To

6 state a claim for breach of the implied covenant of good faith and fair dealing in the denial

7 of coverage context, which is sometimes referred to as a “bad faith claim,” “the plaintiff

8 must show that: (1) benefits due under the policy were withheld; and (2) the reason for

9 withholding benefits was unreasonable or without proper cause.” Align Tech., Inc. v. Fed.

10 Ins. Co., 673 F. Supp. 2d 957, 965 (N.D. Cal. 2009) (quoting Love v. Fire Ins. Exch., 271

11 Cal. App. 3d 1136, 1151 (1990)) (internal quotations omitted). Here, beyond Plaintiff’s

12 conclusory allegations, Plaintiff fails to allege any non-conclusory facts showing that (1)

13 all four Defendants have commercial general liability insurance policies; (2) he is entitled

14 to benefits under that policy that were withheld; and (3) the reason for withholding the

15 benefits was unreasonable. Thus, he has failed to state a claim for bad faith against

16 Defendants’ insurance carriers.

17 Additionally, even if he had made such allegations, in order for the Court to order

18 Defendants’ insurers, who are not parties to this lawsuit, to pay Plaintiff money, the Court

19 would need personal jurisdiction over these insurers, which is impossible given they are

20 neither parties to this lawsuit nor have they been served. Pennoyer v. Neff, 95 U.S. 714

21 (1877), overruled in part by Shaffer v. Heitner, 433 U.S. 186 (1977). Thus, to the extent

22 his claim is, in fact, a bad faith claim against the insurance carriers, he lacks standing to

23 sue for such a claim as he has not shown that his claim was denied.

24 Accordingly, any intent to plead a bad faith claim against Defendants fails as matter

25 of law. Plaintiff has stated insufficient facts to plead such a claim and has failed to name

26 the correct parties.

27 iii. Fraud

28 To the extent Plaintiff’s claim is a direct claim against Defendants for a fraudulent

1 scheme to replace his transmission, this claim fails as well. “The elements of fraud are (1)

2 misrepresentation; (2) knowledge of falsity; (3) ‘intent to defraud, i.e., to induce reliance;’

3 (4) justifiable reliance; and (5) resulting damage.” Dent v. Nat’l Football League, 902 F.3d

4 1109, 1125 (9th Cir. 2018) (citing Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951,

5 974 (1997), as modified (July 30, 1997). “[C]laims sounding in fraud are subject to the

6 heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure,

7 which requires that a plaintiff alleging fraud ‘must state with particularity the

8 circumstances constituting fraud.’” Goldstein v. Gen. Motors LLC, 445 F. Supp. 3d 1000,

9 1010 (S.D. Cal. 2020); see also Fed. R. Civ. P. 9(b) (requiring that “[i]n alleging fraud or

10 mistake, a party must state with particularity the circumstances constitute fraud or

11 mistake”). In order to meet Rule 9’s heightened pleading standard, “the circumstances

12 constituting the alleged fraud [must] be specific enough to give defendants notice of the

13 particular misconduct so that they can defend against the charge and not just deny that they

14 have done anything wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir.

15 2009) (internal quotations omitted). Thus, pleading claims for relief for fraud require “an

16 account of the time, place, and specific content of the false representations as well as the

17 identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756,

18 764 (9th Cir. 2007) (per curiam) (internal quotation marks omitted); see also Vess v. Ciba-

19 Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (“Averments of fraud must be

20 accompanied by the who, what, when, where, and how of the misconduct charged.”)

21 (internal quotation marks omitted).

22 Here, Plaintiff has failed to allege any of the elements of fraud beyond conclusorily

23 alleging Defendants committed fraud, which does not satisfy the Twombly-Iqbal standard.

24 Liberally construing Plaintiff’s complaint in his favor, the Court finds that Plaintiff has

25 plead that Defendants’ fraudulent scheme caused him monetary damages in the form of

26 costs to repair his car. Compl. at 4, ¶ 7A. However, he fails to allege any of the other

27 elements required for fraud. For instance, he does not allege (1) Defendants made any

28 misrepresentations to him; (2) knew those misrepresentations were false; (3) intended to

1 induce Plaintiff’s reliance; and (4) that Plaintiff justifiably relied on those

2 misrepresentations. He also fails to allege the time, place, and specific content of the false

3 representations. Swartz, 476 F.3d at 764.

4 Thus, the Court finds that Plaintiff’s First Claim for Relief fails to state a claim for

5 relief for declaratory relief, bad faith, or fraud.

6 iv. Second Claim for Relief for Negligence

7 Plaintiff’s Second Claim for Relief appears to seek repair costs for his Vehicle in the

8 form of compensatory damages, his costs of suit, towing and storage costs, and any other

9 relief. Compl. at 13-14, ¶¶ 17A. He seeks “(a) past and future emotional pain and

10 suffering; (b) loss of capacity of enjoyment of life without that substantial financial

11 personal private property of value of more than $7,000.00 (Seven Thousand Dollars) and

12 Ph.D. Graduate School “interference & intimidation”; (c) expenses incurred to bring tort;

13 (d) loss of 2022, projected self-employment earnings; and (e) the aforementioned losses

14 are either permanent or continuing and PLAINTIFF will suffer losses in the future.”

15 Compl. at 14, ¶ 18A. There are numerous issues with the damages Plaintiff seeks, which

16 the Court addresses below when analyzing whether Plaintiff has met the amount in

17 controversy; however, the Court now addresses the other elements of negligence, which

18 Plaintiff has also failed to plead.

19 First, Plaintiff fails to allege the basic requirements of negligence. Under California

20 law, “the ‘plaintiff in a negligence suit must demonstrate [1] a legal duty to use due care,

21 [2] a breach of such legal duty, and [3] the breach as the proximate or legal cause of [4] the

22 resulting injury.’” Steinle v. United States, 17 F.4th 819, 822 (9th Cir. 2021) (quoting

23 Vasilenko v. Grace Fam. Church, 3 Cal. 5th 1077, 1083 (2017)).

24 “The existence of a duty of care owed by a defendant to a plaintiff is a prerequisite

25 to establishing a claim for negligence.” Langan v. United Servs. Auto. Ass’n, 69 F. Supp.

26 3d 965, 987 (N.D. Cal. 2014) (dismissing a negligence claim with leave to amend where

27 the plaintiff failed to allege any facts to raise a reasonable inference that the defendants

28 owed him a duty of care) (quoting Nymark v. Heart Fed. Savings & Loan Assn., 231 Cal.

1 App. 3d 1089, 1095 (1991)). “[A] plaintiff’s ‘inability to plead a duty of care . . . precludes

2 his maintenance of a cause of action on any negligence theory.’” Reyes v. Wells Fargo

3 Bank, Nat’l Ass’n, No. EDCV 17-909-JFW(KKx), 2017 U.S. Dist. LEXIS 198129, at *20

4 (C.D. Cal. Aug. 17, 2017) (citing LiMandri v. Judkins, 52 Cal. App. 4th 326, 349 (1997)).

5 Plaintiff fails to plausibly allege Defendants owed him a legal duty of care. He

6 appears to allege all Defendants owed him a duty of care because “there was a binding

7 contract … between DEFENDANT [he does not specify which one] and State Actor, [the]

8 Carlsbad Police Department.” Compl. at 6. As Plaintiff notes in this complaint, see id. at

9 6, a contract is not required to establish negligence. Further, the Court fails to see how a

10 contract between one of the Defendants and the Carlsbad Police Department would create

11 a duty of care owed to Plaintiff. Even assuming arguendo, (1) Defendants owed Plaintiff

12 a duty of care not to tamper with his Vehicle and (2) Defendants breached that duty of care

13 by tampering with his Vehicle transmission, Plaintiff fails to explain how, other than the

14 repair costs totaling $200.00, Defendants’ breach caused Plaintiff the various damages he

15 alleges that are required to meet the amount in controversy. “The required element of legal

16 causation has two components: ‘cause in fact and proximate cause.’” Steinle v. United

17 States, 17 F.4th 819, 822 (9th Cir. 2021) (citing S. Coast Framing, Inc. v. Workers’ Comp.

18 Appeals Bd., 61 Cal. 4th 291, 298 (2015)). Here, Plaintiff has alleged neither.

19 Thus, the Court finds Plaintiff’s Second Claim for Relief also fails to state a claim

20 for relief and is also subject to dismissal.

21 v. Third Claim for Relief for Civil Rights Action

22 Plaintiff’s Third Claim for Relief pleads a civil rights tort against Defendants for

23 their negligence and supervisory negligence in removing and replacing his transmission.

24 Comp. at 14-15, ¶ 21A. Plaintiff also fails to allege which, if any, of his civil rights were

25 violated or how those rights were violated. The Court bears in mind that “[i]n civil rights

26 cases where the plaintiff appears pro se, the court must construe the pleadings liberally and

27 must afford plaintiff the benefit of any doubt.” Karim-Panahi v. Los Angeles Police Dep’t,

28 839 F.2d 621, 623 (9th Cir. 1988). However, even liberally construing Plaintiff’s claims

1 under potential federal civil rights laws, his claim fails.

2 First, Plaintiff cannot state a claim for relief pursuant to the Civil Rights Act of 1964,

3 because that law prohibits discrimination on the basis of his race, color, national origin,

4 sex, and national origin in employment. 42 U.S.C. § 1981, et seq. Here, Plaintiff alleges

5 neither facts showing he had an employment relationship with Defendants nor facts

6 indicating he suffered any discrimination on the basis of his membership in one of the

7 aforementioned protected classes.

8 Second, to the extent Plaintiff intended to plead a civil rights violation under 42

9 U.S.C § 1983, he pleads insufficient facts to state a claim for relief under this statute as

10 well. Under this federal civil rights law, “[e]very person who, under color of any statute

11 … of any State … subjects, or causes to be subjected, any citizen of the United States …

12 to the deprivation of any rights, privileges, or immunities secured by the Constitution and

13 laws, shall be liable to the party injured in an action at law.” 42 U.S.C. § 1983. Thus, to

14 state a claim under Section 1983, a plaintiff must allege (1) the violation of a right secured

15 by the Constitution and laws of the United States and (2) that the alleged deprivation was

16 committed by a person acting under color of state law. Id.; see also West v. Atkins, 487

17 U.S. 42, 48 (1988); Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020). Here, Plaintiff has

18 alleged neither (1) a violation of rights secured by the Constitution and laws of the United

19 States nor (2) that the Defendants, when committing the acts alleged in the complaint, were

20 acting under color of state law.

21 Third, to the extent he intended to plead the claim as one brought under 42 U.S.C. §

22 1985, which provides a cause of action that allows private litigants to sue for damages

23 where “two or more persons” have conspired to deprive them of their federal civil rights,

24 that claim fails as well. See 42 U.S.C. § 1985(3). A claim under section 1985(3) requires

25 that Plaintiffs allege four elements:

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(1) a conspiracy; (2) for the purpose of depriving, either directly

27 or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities

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1 u(4n)d werh tehree blayw as ;p earnsdo n(3 i)s aenit haecrt iinn jufurertdh einra hnicse poefr sthoen coor npsrpoipraecrtyy;

2 or deprived of any right or privilege of a citizen of the United

States.

3

4

Fazaga v. Fed. Bureau of Investigation, 965 F.3d 1015, 1059 (9th Cir. 2020), cert. granted,

5

141 S. Ct. 2720 (2021) (quoting United Bhd. of Carpenters & Joiners of Am., Local 610 v.

6

Scott, 463 U.S. 825, 828-29 (1983)). Here, Plaintiff has not alleged that Defendants

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conspired to deprive him “of the equal protection of the laws, or of equal privileges and

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immunities under the laws.” Fazaga, 965 F.3d at 1059. He also fails to allege “the

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existence of ‘an agreement or meeting of the minds to violate constitutional rights.’”

10

Mendocino Env’t Ctr. v. Mendocino Cty., 192 F.3d 1283, 1301-02 (9th Cir. 1999) (quoting

11

United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir.

12

1989) (en banc)). Thus, he cannot state a civil rights violation under this provision either.

13

See also Springfield v. Hudson, No. 2:22-cv-0328 CKD P, 2022 U.S. Dist. LEXIS 47294,

14

at *4 (E.D. Cal. Mar. 16, 2022) (finding “vague and conclusory allegations of official

15

participation in civil rights violations are not sufficient”) (citing Ivey v. Board of Regents,

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673 F.2d 266, 268 (9th Cir. 1982)); see also Barren v. Harrington, 152 F.3d 1193, 1194

17

(9th Cir. 1998) (noting that “[a] plaintiff must allege facts, not simply conclusions, that

18

show that the individual was personally involved in the deprivation of his civil rights”).

19

A district court may dismiss a complaint as frivolous if the (1) complaint is “based

20

on indisputably meritless legal theories” or (2) “factual contentions are clearly baseless.”

21

Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute on other

22

grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

23

Again, in his civil cover sheet, Plaintiff checked a box indicating that he brings a

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claim under box 370 (Other Fraud); however, his complaint alleges that he also believes

25

he has claims under boxes 380 (Other Personal Property Damage) and 440 (Other Civil

26

Rights). Compl. at 13-15, ¶¶ 14A, 17A, 21A. No facts are alleged in support of the fraud

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and civil rights claims, and to the extent he alleges personal property damage from

28

1 negligence, he does not allege how Defendants’ behavior proximately caused his damages.

2 As a result, Plaintiff’s filing fails to comply with Rule 8. See Fed. R. Civ. P. 8(a)(2) (a

3 complaint “must contain . . . a short and plain statement of the claim showing that the

4 pleader is entitled to relief”); McHenry v. Renne, 84 F.3d 1172, 1177-80 (9th Cir. 1996)

5 (upholding Rule 8 dismissal of a complaint that was “argumentative, prolix, replete with

6 redundancy, and largely irrelevant”); Schmidt v. Herrmann, 614 F.2d 1221, 1224 (9th Cir.

7 1980) (upholding Rule 8 dismissal of “confusing, distracting, ambiguous, and

8 unintelligible pleadings”). Plaintiff’s conclusory references to “covert transportation

9 vehicle terror intent,” “2018-automobile attempted vehicular manslaughter, i.e.,

10 automobile accident rouse masquerade,” and “premeditated attempt of homicide via

11 illegally installed remote controlled automobile transmission,” among other allegations,

12 result in a filing that runs afoul of Rule 8. Although federal pleadings standards are lenient,

13 plaintiffs must still allege sufficient facts to state a claim, and this Court concludes that, in

14 this case, Plaintiff has not done so.

15 Nonetheless, Plaintiff is given leave to file an amended complaint. In drafting the

16 amended complaint, Plaintiff should include a short and plain statement of his claim, laying

17 out the facts of his case, how each of the defendants have harmed him, and why those

18 defendants should be held liable for his injuries. The amended complaint does not need to

19 be extremely detailed, but it should include enough information for the Court and

20 Defendants to understand the claims being made against them.

21 2. Plaintiff has Failed to Plead Federal Jurisdiction

22 As to the first requirement under Rule 8, federal courts are courts of limited

23 jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

24 Consequently, district courts are presumed to lack jurisdiction unless the Constitution or a

25 statute expressly provides otherwise. Stock West, Inc. v. Confederated Tribes, 873 F.2d

26 1221, 1225 (9th Cir. 1989). Generally, federal subject matter jurisdiction exists due to the

27 presence of a federal question, see 28 U.S.C. § 1331, or complete diversity between the

28 parties, see 28 U.S.C. § 1332. Here, Plaintiff alleges diversity of citizenship pursuant to

1 28 U.S.C. § 1332 due to diversity of citizenship and an amount-in-controversy in excess of

2 $75,000.00. Comp. at 2-3, ¶¶ 1A-3A.

3 Section 1332(a) is a law of the United States vesting district courts with “original

4 jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of

5 $75,000, exclusive of interest and costs, and is between . . . citizens of different States.”

6 28 U.S.C. § 1332(a)(1). However, in a case where there are more than two defendants,

7 complete diversity must exist, meaning that all parties on opposite sides of the case must

8 be from different states. Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806), overruled in part

9 on other grounds by Louisville, C. & C.R. Co. v. Letson, 43 U.S. 497 (1844), overruled in

10 part by Hertz Corp. v. Friend, 559 U.S. 77, 92–93 (2010). Here, Plaintiff alleges that he

11 is a Florida citizen and resident, while he alleges, and the Court has taken judicial notice

12 of the fact, that all Defendants are California citizens and residents. See Compl. at 2, ¶¶

13 2A-2D. Thus, he has sufficiently alleged complete diversity. However, diversity

14 jurisdiction also requires that “the matter in controversy exceeds the sum or value of

15 $75,000, exclusive of interest and costs” in order for a case to be removeable. 28 U.S.C. §

16 1332(a)(1) (emphasis added). The amount in controversy encompasses “all relief a court

17 may grant on that complaint if the plaintiff is victorious.” Chavez v. JPMorgan Chase &

18 Co., 888 F.3d 413, 414-15 (9th Cir. 2018). Here, Plaintiff alleges out of pocket costs for

19 repairs to his Vehicle in the amounts of $200.00 in repair costs and $363.00 in towing

20 storage fees. Compl. at 5, ¶ 7A. Yet, Plaintiff seeks $300,000.00 ($75,000.00 from all

21 four Defendants) for his claims. Id. at 15.

22 First, Plaintiff may not recover the costs to tow his Vehicle given they arose from

23 his arrest and in compliance with the California Vehicle Code. Additionally, the actions

24 he alleges caused him harm (i.e., tampering with his Vehicle) occurred after it was towed,

25 so Defendants’ actions post-towing could not have caused damages pre-towing. To the

26 extent he seeks reimbursement for the towing costs on the basis of his car being tampered

27 with there, he is not entitled to a refund; however, he may be entitled to whatever damages

28 arose as a result of the alleged transmission swapping.

1 Second, to the extent, Plaintiff seeks “past and future emotional pain and suffering,”

2 he pleads no facts indicating he has suffering emotional pain and suffering. Generally,

3 there are three ways to recover emotional distress damages in negligence cases under

4 California law: (1) parasitic damages arising from actual physical injury; (2) bystander

5 damages; and (3) direct victim damages. Robinson v. United States, 175 F. Supp. 2d 1215,

6 1224 (E.D. Cal. 2001) (citing Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48

7 Cal. 3d 583, 588 (1989)). First, “[a]llegations of physical injury are absent here.” Abarca

8 v. Merck & Co., No. 1:07-CV-0388 DOC (DLBx), 2012 U.S. Dist. LEXIS 57370, at *25-

9 26 (E.D. Cal. Apr. 16, 2012) (noting that “Plaintiff's allegation of physical pain and

10 suffering is conclusory, and therefore insufficiently pleaded”). Second, “[t]o recover

11 bystander damages, a plaintiff must be closely related to an injured party, be present at the

12 scene of the event when the injury occurred, and suffer emotional distress.” Id. (citing

13 Thing v. La Chusa, 48 Cal. 3d 644, 647 (1989)). Here, Plaintiff does not allege he

14 witnessed the injury of any close relations. Third, “[t]o recover as a direct victim, a plaintiff

15 must be owed a special duty by the party that caused the harm.” Id. (citing Robinson, 175

16 F. Supp. 2d 1215, 1226-29). However, Plaintiff has also not alleged that Defendants owe

17 him a special duty. Thus, Plaintiff has failed to show that his alleged emotional distress

18 damages claim would be an actionable injury if inflicted by a private party, such that these

19 damages should be dismissed.

20 Third, Plaintiff pleads “loss of capacity of enjoyment of life without that substantial

21 financial personal private property of value of more than $7,000.00 (Seven Thousand

22 Dollars) and Ph.D. Graduate School ‘interference & intimidation.’” Compl. at 14, ¶ 18A.

23 Proof of damages requires a plaintiff to “prove both the fact and the amount of

24 damage.” Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993), abrogated

25 on other grounds by SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179, 1181

26 (9th Cir. 2016) (en banc) (per curiam). “Damages that are speculative, remote, imaginary,

27 contingent, or merely possible cannot serve as a legal basis for recovery.” Lumens Co. v.

28 GoEco LED LLC, No. SA-cv-1401286-CJC-DFMX, 2018 WL 1942768, at *6, n.7 (C.D.

1 Cal. Jan. 3, 2018), aff’d, 807 F. App’x 612 (9th Cir. 2020) (noting in the parties’ cross-

2 motions for summary judgment, the defendant’s promises to provide data and admissible

3 evidence at trial did not relieve the defendant of its burden to present admissible evidence

4 to meet its burden on summary judgment).

5 While Plaintiff is not required to prove damages at the pleading stage, his complaint

6 does not plead facts to allow the Court to plausibly infer he has sustained $75,000.00 in

7 damages, much less $300,000.00, in damages to satisfy the amount in controversy for

8 federal jurisdiction. For example, Plaintiff pleads no facts making it plausible he suffered

9 a loss of enjoyment of life or that his graduate schooling was interfered with in any way.

10 Fourth, Plaintiff seeks “loss of 2022, projected self-employment earnings.” Compl. at 14,

11 ¶ 18A. Yet, in Plaintiff’s IFP application, he listed no income or projected income. As

12 such, he has no basis to seek uncertain and unknown earnings. He also pleads no facts

13 indicating how Defendants’ behavior caused any interference with his projected self-

14 employment earnings.

15 Thus, the Court also finds dismissal appropriate on the basis that Plaintiff has failed

16 to plead sufficient facts to allow the Court to plausibly infer the amount in controversy has

17 been met in this case. See, e.g., Gottschalk v. City & Cty. of S.F., 964 F. Supp. 2d 1147,

18 1158 (N.D. Cal. 2013) (granting a motion to dismiss for failure to comply with Rule 8(a)

19 where “[i]n many places, Plaintiff fails to plead any factual basis for her claims,” while

20 “[i]n others, the facts she pleads are conclusory, of unclear relevance, or so bizarre as to be

21 entirely implausible”).

22 Finally, a search of Public Access to Court Electronic Records (“PACER”) shows

23 that since September 5, 1986, “Jerome L. Grimes” has been a plaintiff in 591 cases4 before

24

25 4 In addition to this case, these include at least one case before the Third Circuit Court

of Appeals, two cases before the Fifth Circuit Court of Appeals, 14 cases before the Ninth

26

Circuit Court of Appeals, two cases before the Tenth Circuit Court of Appeals, three cases

27 before the Eleventh Circuit Court of Appeals, at least five case before the Central District

of California, 17 cases in the Eastern District of California, at least 97 cases before the

28

1 the federal courts. See Langer v. Kiser, 495 F. Supp. 3d 904, 911 (S.D. Cal. 2020) (taking

2 judicial notice of the fact that the plaintiff had been a plaintiff in 1,498 other federal cases);

3 see also Fed. R. Evid. 201(b)(1)-(2) (providing that at any stage of a proceeding, courts

4 may take judicial notice of (1) facts not subject to reasonable dispute and “generally known

5 within the trial court's territorial jurisdiction” and (2) adjudicative facts, which “can be

6 accurately and readily determined from sources whose accuracy cannot reasonably be

7 questioned”); see also Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290, fn.

8 1 (9th Cir. 1996) (taking judicial notice of court records). The Court also takes judicial

9 notice of the fact that on December 9, 2005, the Northern District of California declared

10 Plaintiff a vexatious litigant and “issued a pre-filing order concerning cases brought by

11 him.” Grimes v. Schreader, No. C 08-1241 CW, 2008 WL 4291470, at *1 (N.D. Cal. Sept.

12 18, 2008). For example in Grimes v. Sprint, PCS, No. C 00-2321 CRB, 2001 WL 30536,

13 at *1 (N.D. Cal. Jan. 2, 2001), the Court noted that “Plaintiff, who [was] proceeding in

14 forma pauperis, ha[d] filed more than thirty lawsuits in the United States District Court for

15 the Northern District of California,” and “[t]he Court has sua sponte dismissed most of

16 plaintiff’s complaints.” It reiterated that “in July 2000, the Court declared plaintiff a

17 vexatious litigant and enjoined plaintiff from filing any further actions in this Court without

18 first obtaining leave of the general duty judge of the Court.” Id. In the present case, the

19 Court bears in mind that Plaintiff has been declared a vexatious litigant by other districts

20 within the Ninth Circuit and cautions that if he begins his trend of filing unmeritorious

21

22 the District of Columbia District Court, 26 cases before the Florida Middle District Court,

two cases before the Florida Northern District Court, one case before the Georgia Northern

23

District Court, two cases before the Kentucky Eastern District Court, two cases before the

24 Louisiana Middle District Court, 11 cases before the Louisiana Western District Court, 16

cases before the Maryland District Court, one case before the New Hampshire District

25

Court, two cases before the New Jersey District Court, three cases before the Nevada

26 District Court, one case before the New York District Court, 5 cases before the Oklahoma

Western District Court, one case before the Oregon District Court, one case before the

27

South Dakota District Court, one case before the Tennessee Western District Court, and

28 three cases before the Texas Northern District Court.

1 cases within the Southern District, he may be subjecting himself to a similar outcome.

2 3. Plaintiff has Failed to Establish Standing

3 Article III of the United States Constitution limits the subject-matter jurisdiction of

4 federal courts to justiciable “cases” and “controversies.” U.S. Const., Art. III, § 2. The

5 United States Supreme Court has held that for a case to meet the justiciability requirement,

6 a plaintiff must show (1) standing; (2) that the case is ripe; (3) the case is not moot; and

7 (4) the case does not involve a political question. See, e.g., DaimlerChrysler Corp. v.

8 Cuno, 547 U.S. 332, 335 (2006) (“The doctrines of mootness, ripeness, and political

9 question all originate in Article III’s ‘case’ or ‘controversy’ language, no less than

10 standing does.”).

11 In order to bring a case in federal court, a plaintiff must demonstrate he or she has

12 “standing.” U.S. Const. art. III; Clapper v. Amnesty Intern. U.S.A., 568 U.S. 398, 408

13 (2013). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable

14 to the challenged conduct of the defendant, and (3) that is likely to be redressed by a

15 favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised

16 (May 24, 2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

17 “Standing focuses on whether a plaintiff has a ‘personal stake’ in the action such that she

18 will be an effective litigant to assert the legal challenge at issue.” Townley v. Miller, 722

19 F.3d 1128, 1135 (9th Cir. 2013). The United States Supreme Court has explained the

20 concept of standing as follows:

21 To establish Article III standing, an injury must be concrete,

particularized, and actual or imminent; fairly traceable to the

22

challenged action; and redressable by a favorable ruling.

23 Although imminence is concededly a somewhat elastic concept,

it cannot be stretched beyond its purpose, which is to ensure that

24

the alleged injury is not too speculative for Article III purposes—

25 that the injury is certainly impending. Thus, we have repeatedly

reiterated that ‘threatened injury must be certainly impending to

26

constitute injury in fact, and that [a]llegations of possible future

27 injury’ are not sufficient.

28 Clapper, 568 U.S. at 409 (internal citations and quotations omitted).

1 It does appear from the Complaint that Plaintiff has a personal stake in this action.

2 See Townley, 722 F.3d at 1135. Plaintiff contends that Defendants tampered with his

3 Vehicle, which caused him injury in the form of out-of-pocket costs. Compl. at 2.

4 However, Plaintiff does not adequately allege injury in fact. He does not allege facts

5 sufficiently stating how Defendants’ tampering with his Vehicle caused him emotional pain

6 and suffering, interfered with his graduate school, or impacted his future earning capacity.

7 As a result, Plaintiff has not pleaded a “concrete, particularized, and actual or imminent”

8 injury because he has not alleged that he was physical injured in any way and has not pled

9 facts to plausibly allow the Court to infer that—other than his $200.00 repair costs, which

10 do not met the federal amount in controversy requirement, Plaintiff has sustained any other

11 actual damages. See Clapper, 568 U.S. at 409. Accordingly, Plaintiff’s Complaint must

12 be dismissed for the additional reason that he lacks standing to maintain the present action.

13 B. IFP Motion

14 Because the Court has decided that it must dismiss Plaintiff’s complaint, it DENIES

15 Plaintiff’s IFP motion without prejudice as moot. See, e.g., Tur v. YouTube, Inc., 562 F.3d

16 1212, 1214 (9th Cir. 2009) (concluding “that an issue is moot when deciding it would have

17 no effect within the confines of the case itself”).

18 IV. CONCLUSION

19 Prior to dismissing a pro se complaint, a district court should provide the pro se

20 litigant a statement explaining the complaint’s deficiencies along with leave to amend the

21 complaint. Karim-Panahi, 839 F.2d at 623-24. Accordingly, IT IS HEREBY

22 ORDERED that:

23 1. Plaintiff's IFP motion is DENIED without prejudice as moot given the

24 dismissal of the complaint.

25 2. Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE.

26 3. Plaintiff is GRANTED thirty (30) days from the date on which this Order is

27 electronically docketed in which to reopen his case by filing an amended complaint, at

28 which point the Court will reconsider his IFP motion. Plaintiff is advised that failure to

1 timely file an amended complaint will result in entry of a judgment of dismissal without

2 || further notice.

3 Any amended filing must be complete in itself, without reference to □□□□□□□□□□□

4 original Complaint. Any claim not re-alleged in Plaintiff's amended complaint will be

5 ||considered waived. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co.,

6 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

7 || original.”); see also Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that

8 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading

9 || may be “considered waived if not repled”). If Plaintiff fails to pay the $402.00 filing fee

10 full, this action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a),

11 without further Order of the Court.

12 IT IS SO ORDERED. □□

13 |} DATED: March 30, 2022

14 HON. LINDA LOPEZ

15 United States District Judge

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