Opinion

BASS v. JABER

Court
District Court, D. New Jersey
Filed
Nov 18, 2019
Cited by
0 cases
Authority
More cited than 25.2%

The opinion

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GREGORY L. BASS,

Plaintiff Civil Action No. 19-18869

Vv. ‘OPINION & ORDER

JAY JABER, et al.,

Defendants.

John Michael Vazquez. U.S.D.J.

Plaintiff Gregory L. Bass brings the above-captioned action in forma pauperis pursuant to

28 U.S.C. § 1915. (D.E. 1-2). For the reasons discussed below, the Court GRANTS Plaintiff's

application to proceed in forma pauperis but DISMISSES Plaintiff's Complaint (D.E. 1)

(“Compl.”).

I. FACTS AND PROCEDURAL HISTORY

Plaintiff's Complaint, which is handwritten, is difficult to decipher. Plaintiff is suing Jay

Jaber! and Lynnes Nissan City, Inc., alleging that he is a victim of fraud. Compl. at 1-4. Plaintiff

appears to claim that on April 19, 2018 at Lynnes Nissan City, Inc. at 318 Bloomfield Ave,

Bloomfield NJ 07003, Jay Jaber (and possibly others) sold Plaintiff a Chevrolet Tahoe. Jd. at 3.

During the sale, Plaintiff alleges that Jay Jaber and/or other unnamed Lynnes Nissan employees

engaged in fraudulent conduct and “got $2000/3000 from me.” Jd. at 3. Under the prompt “What

happened to you?” the Complaint reads: “Chevrolet Tahoe transmission want in 12 days. Then

' It appears from the Complaint that Jay Jaber is an employee of Lynnes Nissan City, Inc.

they repo car fraud. Accident reports. Previous owners. Service history records all way a laid

when sold it 98.266. I found out 154.529. On it.” /d. It is unclear exactly what Plaintiff is

alleging, but Plaintiff later mentions an odometer being turned back in the Complaint. Jd. at 3-4.

Additionally, under a section in the Complaint titled Injuries, Plaintiff states “Doctor for pain

suffering. They payed me. True back odometer on they cars.” Jd. at 4.

Plaintiff filed the Complaint on October 9, 2019 seeking “5000/or/more 10,000.” Jd.

Plaintiff claims the basis for federal court jurisdiction is federal question. /d. at 2.

II. LEGAL STANDARDS

A. 28 U.S.C. § 1915

Under Section 1915, this Court may excuse a litigant from prepayment of fees when the

litigant “establish{es] that he is unable to pay the costs of his suit.” Walker v. People Express

Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989). Plaintiff sufficiently established his inability to

pay for the costs of his suit and the Court grants Plaintiff's motion to proceed in forma pauperis

without prepayment of fees and costs. See Compl., D.E. 1-2.

However, when allowing a plaintiff to proceed in forma pauperis, the Court must review

the complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to

state a claim upon which relief may be granted, or seeks monetary relief against a defendant who

is immune. 28 U.S.C. § 1915(e){2). When considering dismissal under § 1915(e)(2)(B)(ii) for

failure to state a claim on which relief can be granted, the Court must apply the same standard of

review as that for dismissing a complaint under Federal Rule of Civil Procedure 12(b)(6).

Schreane vy. Seana, 506 F. App’x 120, 122 (3d Cir. 2012).

To state a claim that survives a Rule 12(b)(6) motion to dismiss, a complaint must contain

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard “does

not impose a probability requirement, it does require a pleading to show more than a sheer

possibility that a defendant has acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780,

786 (3d Cir. 2016) (internal quotation marks and citations omitted). As a result, a plaintiff must

“allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her

claims.” Jd. at 789. In other words, although a plaintiff need not plead detailed factual allegations,

“a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atl. Corp,, 550 U.S. at 555 (internal quotations omitted).

In addition, because Plaintiff is proceeding pro se, the Court construes the pleadings

liberally and holds them to a less stringent standard than those filed by attorneys. Haines v, Kerner,

404 U.S. 519, 520 (1972). “The Court need not, however, credit a pro se plaintiffs ‘bald

assertions’ or ‘legal conclusions.’ D'Agostino v. CECOM RDEC, No. 10-4558, 2010 WL

3719623, at *1 (D.N.J. Sept. 14, 2010) (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902,

906 (3d Cir. 1997)).

Ill. LEGAL ANALYSIS

At the outset, Plaintiff has not met his burden of proving that this Court has subject matter

jurisdiction over this matter. “In order to establish a basis for subject matter jurisdiction in federal

court, a plaintiff's claims must establish either federal question jurisdiction under 28 U.S.C. §

1331, or diversity jurisdiction under 28 U.S.C. § 1332. Gencarelli v. New Jersey Dep’t of Labor

& Workforce Dev., No. 15-3405, 2015 WL 5455867, at *1 (D.N.J. Sept. 16, 2015) (citing Hines

v. Irvington Counseling Ctr., 933 F. Supp. 382, 387 (D.N.J. 1996)}. The burden is on the Plaintiff

to prove the Court has jurisdiction. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir.

2000), holding modified by Simon v. United States, 341 F.3d 193 (3d Cir. 2003).

Plaintiff states that his claim is brought pursuant to federal question jurisdiction. Compl.

at 2. To establish a claim under federal question jurisdiction, Plaintiff must allege a “civil action

arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Plaintiff

does not cite to any federal law that might form the basis for federal question jurisdiction.

While Plaintiff's Complaint is difficult to decipher, it appears that Plaintiff is claiming

fraud in the sale of a vehicle. Compl. at 2-4. Even this point is not clear because Plaintiff appears

to be arguing that the vehicle’s transmission was faulty, but he also appears to assert that the

vehicle was repossessed. Plaintiff also mentions an odometer being turned back. Jd. at 3-4. To

the extent Plaintiff is attempting to allege a federal claim of odometer fraud, Plaintiff fails to allege

such a claim clearly or in any detail. To the extent Plaintiff is alleging a claim of fraud more

broadly relating to the transaction, Plaintiff's avenue for relief would lie in state court as there does

not appear to be a relevant federal question. As the Complaint stands, Plaintiff's allegation fails

to plausibly state a claim against Defendants that implicates federal question jurisdiction.

Additionally, under Federal Rule of Civil Procedure 9, “a party must state with particularity

the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions

of a person’s mind may be alleged generally.” F. R. Civ. Pro. 9(b). Plaintiff does not state the

circumstances of this alleged fraudulent transaction with particularity.

Therefore, if Plaintiff chooses to bring forth an amended complaint under a claim of federal

odometer fraud, Plaintiff must clearly allege the basis for the Court’s subject matter jurisdiction

and plead his claim with particularity, in accordance with Rule 9(b). If Plaintiff is otherwise

claiming fraud or some other theory of liability related to the sale of a vehicle, it appears that he

would have to bring his action in state court unless he can assert a relevant federal law.

For the foregoing reasons, Plaintiff fails to plausibly plead a cause of action, and his

Complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i1).

When dismissing a case brought by a pro se plaintiff, a court must decide whether the

dismissal will be with prejudice or without prejudice, the latter of which affords a plaintiff with

leave to amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d Cir. 2002). The

district court may deny leave to amend only if (a) the moving party’s delay in seeking amendment

is undue, motivated by bad faith, or prejudicial to the non-moving party or (b) the amendment

would be futile. Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984). Because Plaintiff is

proceeding pro se and this is the Court’s initial screening, the Court will provide Plaintiff with one

additional opportunity to file an amended complaint. Therefore, the Court provides Plaintiff thirty

(30) days to file an amended complaint that cures the deficiencies set forth herein.

If Plaintiff is proceeding pursuant to a legal theory other than the one discussed herein, he

must set forth the basis for his claim and provide plausible factual allegations to support the claim.

Plaintiff does not submit an amended complaint curing these deficiencies within thirty (30) days,

the dismissal will then be with prejudice. A dismissal with prejudice means that Plaintiff will be

precluded from filing any future suit against any present Defendant, concerning the allegations in

the Complaint.

Thus, for the reasons set forth above and for good cause shown,

IT IS on this 15th day of November, 2019,

ORDERED that Plaintiff's application to proceed in forma pauperis is GRANTED, and

it is further

ORDERED that the Complaint, D.E. 1, is DISMISSED without prejudice pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim; and it is further

ORDERED that Plaintiff may file an amended complaint within THIRTY (30) DAYS of

receipt of this Opinion and Order, curing the deficiencies noted herein. If Plaintiff fails to file an

amended complaint within THIRTY (30) DAYS of receipt, dismissal of this case shall be with

prejudice.” In addition, if Plaintiff files an amended complaint but it is still deficient, this case will

be dismissed with prejudice; and it is further

ORDERED that if Plaintiff instead wishes to bring this matter in state court, he shall notify

the Court in writing within the thirty (30) day period so that the Court can close the current case

without dismissing it with prejudice; and it is further

ORDERED that the Clerk shall serve this Opinion and Order upon Plaintiff by certified

mail return receipt.

mote V8, \) af

JOHN MICHAEL TAZOHEL U.S.D.J.

Dismissal with prejudice means that Plaintiff will not be able to bring any future action against

Defendants based on the allegations in this case.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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