# Mullally v. Campos

> District Court, S.D. California · January 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10088902

## Case

- **Court:** District Court, S.D. California
- **Decided:** January 18, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10088902

## How later opinions describe it (automated extraction)

- holding 12 that “[s]ection 1915 typically requires the reviewing court to exercise its sound discretion 13 in determining whether the affiant has satisfied the statute’s requirement on indigency”
- noting that § 1915(e)(2)(B) 7 “mandates dismissal—even if dismissal comes before the defendants are served”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 CHRISTOPHER MULLALLY, Case No. 23-cv-1955-BAS-BLM

12 Plaintiff,
ORDER:
13 v.

14 KARINA CAMPOS d/b/a M&T AUTO (1) GRANTING DEFENDANTS’
REPAIR, REQUEST FOR IN FORMA
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PAUPERIS STATUS (ECF No. 2);
Defendant.
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(2) DISMISSING SUA SPONTE FOR
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LACK OF SUBJECT MATTER
18 JURISDICTION; AND

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(3) DENYING MOTION TO
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APPOINT COUNSEL (ECF No.
21 3)

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23 Chrisopher Mullaly files this action in federal court, requesting $15,000 damages
24 from a lost Winnebago he had towed to M&T Automotive. Mullaly requests in forma
25 pauperis (“IFP”) status (ECF No. 2) and asks for appointment of counsel. (ECF No. 3.)
26 However, he does not explain why the case was filed in federal court as opposed to state
27 court. Since federal court lacks subject matter jurisdiction over this case, the Court
28 DISMISSES the case without prejudice.
1 I. ANALYSIS
2 A. Request to Proceed IFP
3 All parties instituting any civil action, suit, or proceeding in a district court of the
4 United States, except an application for writ of habeas corpus, must pay a filing fee. See
5 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to prepay the
6 entire fee only if the plaintiff is granted IFP status pursuant to 28 U.S.C. § 1915(a). See
7 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d
8 1176, 1177 (9th Cir. 1999).
9 Under 28 U.S.C. § 1915, indigency is the benchmark for whether a plaintiff may
10 proceed IFP. The determination of indigency falls within the district court’s sound
11 discretion. See Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (holding
12 that “[s]ection 1915 typically requires the reviewing court to exercise its sound discretion
13 in determining whether the affiant has satisfied the statute’s requirement on indigency”),
14 rev’d on other grounds, 506 U.S. 194 (1993). A party need not be completely destitute to
15 satisfy the IFP indigency threshold. See Adkins v. E.I. DuPont de Nemours & Co., 335
16 U.S. 331, 339–40 (1948). To qualify for IFP status, “an affidavit is sufficient which states
17 that one cannot because of his poverty pay or give security for costs . . . and still be able to
18 provide himself and the dependents with the necessities of life.” Id. at 339. However,
19 “care must be employed to assure that federal funds are not squandered to underwrite, at
20 public expense, . . . the remonstrances of a suitor who is financially able, in whole or in
21 material part, to pull his own oar.” Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I.
22 1984). District courts, therefore, tend to reject IFP applications where the applicant can
23 pay the filing fee with acceptable sacrifice to other expenses. See Skylar v. Saul, No. 19-
24 CV-1581-NLS, 2019 WL 4039650, at *3 (S.D. Cal. Aug. 27, 2019).
25 Mullaly lists income of $1200 - $1400 a month, including public assistance. He lists
26 monthly expenses of $1555. (ECF No. 2.) Thus, this Court GRANTS his request to
27 proceed IFP.
28 B. Sua Sponte Screening
1 Under 28 U.S.C. § 1915(e)(2)(B), courts must sua sponte dismiss IFP complaints,
2 or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek
3 damages from defendants who are immune. 28 U.S.C. § 1915(e)(2)(B); see Lopez v. Smith,
4 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but
5 requires a district court to dismiss an [IFP] complaint that fails to state a claim.”); Chavez
6 v. Robinson, 817 F.3d 1162, 1167–68 (9th Cir. 2016) (noting that § 1915(e)(2)(B)
7 “mandates dismissal—even if dismissal comes before the defendants are served”). “[T]he
8 provisions of section 1915(e)(2)(B) are not limited to [complaints filed by] prisoners,” but
9 extend to all IFP pleadings. Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per
10 curiam).
11 Courts address the issue of subject matter jurisdiction first, as “[t]he requirement that
12 jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the
13 judicial power of the United States’ and is ‘inflexible and without exception.’” Steel Co.
14 v. Citizens for a Better Env't, 523 U.S. 83, 94–95 (1998) (quoting Mansfield, C. & L.M.
15 Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). “Federal courts are courts of limited
16 jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “They
17 possess only that power authorized by Constitution and statute, which is not to be expanded
18 by judicial decree.” Id. (internal citations omitted). “It is to be presumed that a cause lies
19 outside this limited jurisdiction, and the burden of establishing the contrary rests upon the
20 party asserting jurisdiction.” Id. (internal citations omitted); see also Abrego Abrego v.
21 Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006).
22 Courts may consider the issue of subject matter jurisdiction sua sponte. Demery v.
23 Kupperman, 735 F.2d 1139, 1149 n.8 (9th Cir. 1984). Indeed, the Supreme Court has
24 emphasized that “district courts have an ‘independent obligation to address subject-matter
25 jurisdiction sua sponte.’” Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 593
26 (2004) (quoting United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 972 (E.D. Cal.
27 2004)).
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1 Generally, federal jurisdiction is dependent on either diversity jurisdiction or federal
2 question jurisdiction. Diversity jurisdiction exists when an action is between “citizens of
3 different States” and “the matter in controversy exceeds the sum or value of $75,000,
4 exclusive of interest and costs.” 28 U.S.C. § 1332(a). Complete diversity exists where
5 “the citizenship of each plaintiff is diverse from the citizenship of each defendant.”
6 Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). In other words, the plaintiff and the
7 defendant can’t both be residents of California, and the amount of damages has to be more
8 than $75,000.
9 For federal question jurisdiction, the case must arise under federal law. “For a case
10 to ‘arise under’ federal law, a plaintiff's well-pleaded complaint must establish either (1)
11 that federal law creates the cause of action or (2) that the plaintiff's asserted right to relief
12 depends on the resolution of a substantial question of federal law.” K2 Am. Corp. v. Roland
13 Oil & Gas, LLC, 653 F.3d 1024, 1029 (9th Cir. 2011) (quoting Peabody Coal Co. v. Navajo
14 Nation, 373 F.3d 945, 948 (9th Cir. 2004)).
15 In this case, Mullaly files what appears to be a classic state-court case in federal
16 court. He does not state any grounds for federal jurisdiction. There are no allegations that
17 diversity jurisdiction exists. In fact, Mullaly appears to be seeking only $15,000 in
18 damages, and there are no allegations with respect to the citizenship of each of the parties.
19 Nor are there allegations that federal law creates the cause of action or that resolution of
20 the case depends on the resolution of a substantial question of federal law. Thus, it appears
21 this case should be filed in state court, not in federal court. For those reasons, the Court
22 DISMISSES the Complaint sua sponte without prejudice for lack of subject matter
23 jurisdiction.
24 Mullaly has also filed a Motion to Appoint Counsel pursuant to 28 U.S.C. §
25 1915(e)(1). (ECF No. 3.) The decision to appoint counsel is within “the sound discretion
26 of the trial court[,] and is granted only in exceptional circumstances.” Agyeman v. Corr.
27 Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Since the Court finds this case may
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| be properly filed in federal court, the Court DENIES the request for counsel. (ECF No.
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3 CONCLUSION
4 For the above reasons, the Court GRANTS Plaintiff's Request to proceed IFP (ECF
5 || No. 2), but sua sponte DISMISSES the case for lack of federal jurisdiction. If Mr. Mullaly
6 || believes he can allege federal jurisdiction either by alleging that diversity jurisdiction exists
7 || or that the case raises a federal question, he must file an Amended Complaint by February
8 2024. Otherwise, this case should be filed in state court as opposed to federal court.
9 || Additionally, the Court DENIES Mullaly’s Request for Counsel. (ECF No. 3.)
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11 IT IS SO ORDERED.
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13 || DATED: January 18, 2024 (pil Q_« Ayphan. 6
14 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10088902. Public record. Not legal advice.