Grimes v. Mossy Nissan Kearny Mesa

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JEROME L. GRIMES, Case No.: 22-CV-1345 TWR (JLB)

12 Plaintiff,

ORDER (1) DISCHARGING ORDER

13 v. TO SHOW CAUSE, (2) DIRECTING

CLERK OF COURT TO UPDATE

14 MOSSY NISSAN KEARNY MESA,

PLAINTIFF’S ADDRESS,

15 Defendant. (3) GRANTING MOTION TO

PROCEED IN FORMA PAUPERIS,

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(4) SCREENING COMPLAINT

17 PURSUANT TO 28 U.S.C. § 1915(e),

AND (5) DISMISSING COMPLAINT

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FOR FAILURE TO STATE A CLAIM

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(ECF Nos. 1, 2, 6, 7)

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21 Plaintiff Jerome L. Grimes, proceeding pro se, initiated this action against Defendant

22 Mossy Nissan Kearny Mesa on September 6, 2022, filing a Complaint (ECF No. 1,

23 “Compl.”) and Motion for Leave to Proceed in Forma Pauperis (“IFP”) (ECF No. 2 (“IFP

24 Mot.”)). In the ensuing months, the Court served Plaintiff with several filings via U.S.

25 Mail, and each was returned by the Post Service as undeliverable. (See ECF Nos. 3, 4, 5.)

26 On March 16, 2023, Plaintiff filed a Notice of Change of Address, which the Clerk of Court

27 designated as “incomplete.” (See ECF No. 6.) Consequently, on March 20, 2023, the

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1 Court ordered Plaintiff to file a complete Notice of Change of Address or to show cause

2 why this action should not be dismissed within fourteen days.1 (See ECF No. 7.)

3 I. Order to Show Cause and Notice of Change of Address

4 Upon further inspection, the Court finds Plaintiff’s Notice of Change of Address

5 sufficient. The Notice designates Plaintiff’s current address as: “GENERAL DELIVERY,

6 Montclair, CA 91763-9999.” (See ECF No. 6.) “General delivery service permits a person

7 to receive mail addressed merely to his or her name, with the designation ‘General

8 Delivery, [City Name]’” and “is intended primarily to serve as a temporary means of

9 delivery, although homeless persons may use the service indefinitely.” Currier v. Potter,

10 379 F.3d 716, 722 (9th Cir. 2004) (citations omitted); see also Domestic Mail Manual

11 § 508.6.1 (“General delivery is intended primarily as a temporary means of delivery: a. For

12 transients and customers not permanently located. b. For customers who want Post Office

13 box service when boxes are unavailable.”) Accordingly, the Court DISCHARGES its

14 Order to Show Cause and DIRECTS the Clerk of Court to update the Docket to reflect

15 Plaintiff’s current address.

16 II. Motion to Proceed in Forma Pauperis

17 The Court now turns to Plaintiff’s pending IFP Motion. All parties instituting any

18 civil action, suit, or proceeding in a district court of the United States, except an application

19 for writ of habeas corpus, must pay a filing fee of $402.2 See 28 U.S.C. § 1914(a). An

20 action may proceed despite a plaintiff’s failure to prepay the entire fee only if they are

21 granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169

22 F.3d 1176, 1177 (9th Cir. 1999). “All persons, not just prisoners, may seek IFP status.”

23 Moore v. Maricopa Cnty. Sheriff’s Off., 657 F.3d 890, 892 (9th Cir. 2011). A plaintiff

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26 1 That Order was also returned as undeliverable. (See ECF No. 8.)

2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of

27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule,

§ 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave

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1 seeking IFP status must allege poverty “with some particularity, definiteness and

2 certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing McQuade,

3 647 F.3d at 940). “An affidavit in support of an IFP application is sufficient where it

4 alleges that the affiant cannot pay the court costs and still afford the necessities of life.” Id.

5 While the IFP statute does not itself define what constitutes insufficient assets, a party need

6 not “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co.,

7 335 U.S. 331, 339 (1948).

8 Here, Plaintiff sufficiently demonstrates that paying court costs would hinder his

9 ability to afford the necessities of life. Plaintiff has submitted an affidavit demonstrating

10 that he is unemployed (“Ph.D. Student temporarily on leave”) and does not have an

11 employed spouse. (See IFP Mot. at 2.) Plaintiff has not claimed any assets and his bank

12 account has a balance of $0.54. (Id. at 2–3.) Moreover, Plaintiff has a monthly income of

13 $871.00 and monthly expenses of $895.00. (Id. at 2, 5.) If a filing fee represents “roughly

14 forty percent [of the movant]’s monthly income before expenses,” the Court should grant

15 IFP status. See Escobedo, 787 F.3d at 1235 (emphasis in original). Here, the filing fee of

16 $402 represents roughly 46% of Plaintiff’s monthly income before expenses. Accordingly,

17 the Court GRANTS Plaintiff’s IFP Motion.

18 III. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B)

19 Because the Court has granted Plaintiff leave to proceed IFP, it must screen

20 Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Under this statute, courts

21 shall review and sua sponte dismiss any complaint that is frivolous, malicious, fails to state

22 a claim on which relief may be granted, or seeks damages from defendants who are

23 immune. See Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en banc). “The

24 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not

25 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.

26 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.

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1 “The standard for determining whether a plaintiff has failed to state a claim upon

2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

4 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that complaints “contain sufficient

5 factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

6 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Detailed

7 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of

8 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

9 And the “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-

10 harmed me accusation[s]” will not suffice. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d

11 962, 969 (9th Cir. 2009).

12 Plaintiff appears to bring two claims against Defendant Mossy Nissan Kearny Mesa:

13 (1) fraud and (2) supervisory negligence. (See ECF No. 1-1.) In the absence of any

14 reference to controlling law in the Complaint, the Court assumes Plaintiff’s claims arise

15 under California state common law. For the reasons discussed below, the Court finds that

16 Plaintiff’s Complaint fails to establish jurisdiction and fails to state a claim upon which

17 relief may be granted.

18 A. Subject-Matter Jurisdiction

19 As a preliminary matter, all complaints must contain “a short and plain statement of

20 the grounds for the court’s jurisdiction.” See Fed. R. Civ. P. 8(a)(1); see also Fed. R. Civ.

21 P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,

22 the court must dismiss the action.”). Here, Plaintiff’s Complaint does not contain a

23 statement of jurisdiction. (See generally Compl.) The Court will, however, consider

24 Plaintiff’s Civil Cover Sheet, which asserts that the Court has subject-matter jurisdiction

25 based on a federal question and diversity. (See ECF No. 1-1); see also Peralta v. Hispanic

26 Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005) (“In civil cases, subject matter jurisdiction

27 is generally conferred upon federal district courts either through diversity jurisdiction, 28

28 U.S.C. § 1332, or federal question jurisdiction, 28 U.S.C. § 1331.”).

1 Federal question jurisdiction provides federal courts with the ability to hear any

2 action “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C

3 § 1331. Because Plaintiff’s Complaint does not identify any constitutional provision,

4 federal law, or treaty under which his fraud and negligence claims arise, (see generally

5 Compl.), the Court finds that there is no federal question appearing on the face of the

6 Complaint, see, e.g., Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826,

7 831 (2002) (“[F]ederal jurisdiction generally exists ‘only when a federal question is

8 presented on the face of the plaintiff’s properly pleaded complaint.’” (quotingCaterpillar

9 Inc. v. Williams, 482 U.S. 386, 392 (1987))). Accordingly, the Court does not have subject-

10 matter jurisdiction based on a federal question.

11 Alternatively, a federal court may exercise diversity jurisdiction if there is complete

12 diversity of citizenship between adverse parties and the amount in controversy exceeds

13 $75,000. See 28 U.S.C. § 1332. On his Civil Cover Sheet, Plaintiff claims that Defendant

14 is a citizen of California and that he is a citizen of a different state. (See ECF No. 1-1.)

15 But a party invoking diversity jurisdiction must identify the state of citizenship of each of

16 the parties. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001)

17 (“[Defendants’] failure to specify Plaintiffs’ state citizenship was fatal to Defendants’

18 assertion of diversity jurisdiction.”).

19 Although the Complaint identifies Defendant Mossy Nissan Kearny Mesa’s

20 “premises” as “8118 Clairemont Mesa Blvd., San Diego, California,” (Compl. at 4), the

21 location of a “premises” is not necessarily indicative of Defendant’s citizenship for

22 jurisdictional purposes. Moreover, based on the Complaint, it is unclear whether

23 Defendant is a corporation, limited liability company, or another type of entity. This

24 ambiguity prohibits the Court from determining Defendant’s citizenship. See Hertz Corp.

25 v. Friend, 559 U.S. 77, 93 (2010) (explaining that a corporation is a citizen of the state

26 where it is incorporated as well as the state where it maintains its principal place of

27 business); Carden v. Arkoma Assocs., 494 U.S. 185, 190 (1990) (explaining that

28 unincorporated associations and partnerships are citizens of each state in which their

1 members are citizens); Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th

2 Cir. 2006) (explaining that limited liability companies are citizens of each state in which

3 their members are citizens).

4 Finally, diversity jurisdiction requires an amount in controversy in excess of

5 $75,000. See Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 83–84

6 (2014). Here, Plaintiff claims $3,400,000 in damages. (See ECF No. 1-1; see also Compl.

7 at 9; see also id. at 12 (claiming Plaintiff actually lost “more than $21,000,000.00 (twenty-

8 one million dollars)”).) According to the Complaint, these damages are based on Plaintiff’s

9 assertion that Defendant caused him to lose the following personal property: “valuable

10 trade secrets . . . (2-business plan coloring book retail product[s]),” “2-dissertations works-

11 of-arts research in-progress,” “2-laptop computers,” “(2) two-gas cans,” various DVDs,

12 confidential legal mail, and a list of personal property. (Compl. at 9–10.)

13 “[I]f, from the face of the pleadings, it is apparent, to a legal certainty, that the

14 plaintiff cannot recover the amount claimed, . . . the suit will be dismissed.” St. Paul

15 Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938). Nowhere in the Complaint

16 does Plaintiff explain how the property at issue is worth over three million dollars. (See

17 generally Compl.) In fact, without further detail, it is not readily apparent from the

18 Complaint how the property could be worth even $75,000. Aside from this personal

19 property, Plaintiff does not claim any other type of compensatory damages (such as

20 emotional distress, for example), punitive damages, or injunctive relief—the monetary

21 value of which the Court could consider in the amount-in-controversy valuation. See Galt

22 G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56 (9th Cir. 1998). Therefore, the Court

23 cannot accept Plaintiff’s amount-in-controversy estimate as a good faith allegation. See

24 Dart Cherokee Basin, 574 U.S. at 87. Accordingly, the Court finds that it does not have

25 subject matter jurisdiction based on a diversity.

26 Because Plaintiff fails to establish that the Court has either federal question

27 jurisdiction or diversity jurisdiction, the Court DISMISSES Plaintiff’s Complaint for lack

28 of subject-matter jurisdiction.

1 B. Fraud Claim

2 In addition to the aforementioned jurisdictional issues, the Complaint also fails to

3 state a claim for common law fraud “that is plausible on its face.” See Iqbal, 556 U.S. at

4 678. “Under California law, the elements of common law fraud are ‘misrepresentation,

5 knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damages.’”

6 Rosal v. First Fed. Bank of Cal., 671 F. Supp. 2d 1111, 1131 (N.D. Cal. 2009) (quoting Gil

7 v. Bank of Am., Nat’l Ass’n, 138 Cal. App. 4th 1371, 1381 (2006)). By way of brief

8 background, it appears that Plaintiff went to Defendant’s automobile repair shop to get his

9 car fixed, received a rental car, and was subsequently arrested for failing to return that

10 rental car in a timely manner. (See generally Compl.) From the Complaint, the Court

11 gleans that the Plaintiff’s lost personal property was in that rental car. (See id. at 9–13.)

12 As for Plaintiff’s fraud claim, the Complaint alleges Defendant’s employee—

13 “Darryl (Doe)”—and his coworkers “committed fraud through supervisory negligence by

14 lying (i.e., fraud)” because they told Plaintiff that his car’s transmission fluid pan had a

15 hole in it, when a later inspection by an insurance agent revealed that it did not. (See id. at

16 2–3.) Yet, nowhere in the Complaint does Plaintiff allege that Defendant’s employees

17 knew the statement about the fluid pan was false when it was made. (See generally id.)

18 Nor does the Complaint allege that the employees made this statement with an intent to

19 defraud Plaintiff. (See generally id.)

20 Moreover, the Complaint fails to explain how Plaintiff justifiably relied on Darryl’s

21 statement about the fluid pan or how such reliance caused Plaintiff’s damages. (See

22 generally id.) According to the Complaint, Plaintiff lost his personal property because

23 Defendant and Enterprise Rent-a-Car filed a police incident report when Plaintiff failed to

24 return his rental vehicle. (See id. at 7.) Although Plaintiff claims the filing of this report

25 was “malicious, defaming & prejudicial,” he does not assert that it was an act of fraud.

26 (See id. at 9.) In sum, it is unclear how Defendant’s alleged misrepresentation about the

27 fluid pan in Plaintiff’s car caused Plaintiff to lose the personal property in his rental vehicle.

28 And an allegation of misrepresentation does not alone state a claim for fraud.

1 For the foregoing reasons, the Court finds that Plaintiff has failed to state a claim for

2 common law fraud pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court therefore

3 DISMISSES Plaintiff’s fraud cause of action.

4 C. Negligence Claim

5 Plaintiff’s claim for common law negligence fares no better. The essential elements

6 of negligence under California common law are (1) a legal duty to use reasonable care and

7 (2) a breach of that duty (3) which actually and proximately causes (4) damages to a person

8 or property. See, e.g., Mendoza v. City of L.A., 66 Cal. App. 4th 1333, 1339 (1998) (citing

9 Wattenbarger v. Cincinnati Reds, Inc., 28 Cal. App. 4th 746, 751 (1994)).

10 According to Plaintiff, Defendant’s employee, Darryl, failed to uphold his duty of

11 care because he did not tell Plaintiff which rental car location would be providing

12 Plaintiff’s rental vehicle. (Compl. at 2.) This failure allegedly caused Plaintiff to lose

13 contact with the rental car company. (Id.) Plaintiff separately alleges that Defendant’s

14 employees “unjustifiably refused” to repair Plaintiff’s transmission, (id. at 3), and

15 “conspired [in a] pre-textual ‘rouse’ with malice and racial discrimination to illegally

16 induce the plaintiff to not get his [car] out of the automobile repair shop,” (id. at 5). It is

17 unclear from the Complaint, however, whether Plaintiff believes these acts also constitute

18 a breach of duty. Defendant subsequently sent a Notice of Demand for Rental Car to

19 Plaintiff’s Florida residence, despite knowing Plaintiff “was ‘stranded/covertly intimidated

20 without force & fear’ in unforeseen imminently dangerous snow conditions in the state of

21 Colorado, and ‘not’ in the state of Florida.” (Id. at 7.) Again, it is unclear whether Plaintiff

22 believes this constitutes a breach of duty. After sending the Notice, Defendant and

23 Enterprise Rent-a-Car then filed a police report, (id.), and Plaintiff was arrested for

24 “aggravated automobile theft/(over due rental car)/embezzlement of rental vehicle,” (id. at

25 2). Plaintiff seems to have lost his personal property inside the rental vehicle as a result

26 his arrest. (See id. at 7.)

27 Plaintiff’s Complaint fails to connect these factual allegations to the elements of

28 common law negligence. Plaintiff has not alleged that the Parties had a contractual

1 relationship or a special relationship that legally entitled him to a certain duty of care. See

2 Biakanja v. Irving, 49 Cal. 2d 647, 650 (1958); Beacon Residential Cmty. Ass’n v.

3 Skidmore, Owings & Merril LLP, 59 Cal. App. 4th 568, 573 (2014). Even assuming

4 Defendant had a general duty of care to act as a reasonably prudent automobile repair shop

5 would under the same circumstances, Plaintiff has failed to sufficiently allege how

6 Defendant breached this duty. The Complaint’s only explicit allegation of a “failure of

7 duty of care” is its assertion that Defendant’s employee did not tell Plaintiff which location

8 would be providing Plaintiff’s rental vehicle. (Compl. at 2.) This fact, accepted as true,

9 does not support a plausible allegation of breach. See Jackson v. Ryder Truck Rental, Inc.,

10 16 Cal. App. 4th 1830, 1838 (1993) (requiring (1) failure to use ordinary care, (2) creation

11 of a risk, and (3) carelessness to find breach). Plaintiff also fails to explain how

12 Defendant’s other acts of alleged wrongdoing—such as failing to repair the transmission,

13 sending a Notice of Demand to Plaintiff’s residence in Florida, and filing a police report—

14 constitute a breach of any duty. (See generally Compl.)

15 Moreover, the Complaint does not plausibly allege that Defendant was the actual

16 and proximate cause of Plaintiff’s injury. Proximate causation requires the defendant’s

17 conduct to be a substantial factor in causing the plaintiff’s harm. Mitchell v. Gonzales, 54

18 Cal. 3d 1041, 1052 (1991). This means that the effects of a defendant’s negligent conduct

19 must have operated actively and continuously to bring about the plaintiff’s ultimate harm.

20 See Osborn v. Irwin Mem’l Blood Bank, 5 Cal. App. 4th 234, 253 (1992). Furthermore,

21 causation cannot be established if a superseding, unforeseeable force intervenes between

22 the alleged act of negligence and the plaintiff’s injury. See, e.g., Hart v. Brown, 103 Cal.

23 3d. 947, 964 (1980); Schrimsher v. Bryson, 58 Cal. 3d 660, 664 (1976). Here, it is unclear

24 how Defendant’s alleged negligence—i.e., failing to tell Plaintiff which location would be

25 providing his rental car—could have caused Plaintiff to lose the property within that rental

26 car upon his eventual arrest.

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1 For the foregoing reasons, the Court finds that Plaintiff has failed to state a claim for

2 common law negligence pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court therefore

3 DISMISSES Plaintiff’s negligence cause of action.

4 D. Leave to Amend

5 Although Plaintiff has failed to allege subject-matter jurisdiction or to state a claim

6 for common law fraud or negligence, the Court grants Plaintiff leave to amend. See Rosati

7 v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro

8 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it

9 is absolutely clear that the deficiencies of the complaint could not be cured by

10 amendment.’” (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012))).

11 Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint.

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I CONCLUSION

2 In light of the foregoing, the Court:

3 (1) DISCHARGES its Order to Show Cause (ECF No. 7);

4 (2) DIRECTS the Clerk of Court to update the Docket to reflect □□□□□□□□□□□

5 current address consistent with his Notice of Change of Address (ECF No. 6);

6 (3) GRANTS Plaintiffs Motion to Proceed in Forma Pauperis (ECF No. 2)

7 || pursuant to 28 U.S.C. § 1915(a); and

8 (4) DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint (ECF No. 1)

9 sponte for failing to state a claim upon which relief may be granted pursuant to 28

10 |/U.S.C. § 1915(e)(2)(B)(i1). Plaintiff MAY FILE an amended complaint curing the above-

11 identified deficiencies within sixty (60) days of the date of this Order. Jf Plaintiff fails to

12 || file an amended complaint within the time provided, this action shall be closed without

13 || further Order of the Court.

14 IT IS SO ORDERED.

15 Dated: April 17, 2023 —_——

6 (59) 1Q bre

17 Honorable Todd W. Robinson

8 United States District Judge

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