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Not for Publication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.