# Minichino v. La Rosa

> District Court, N.D. California · August 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10639026

## Case

- **Court:** District Court, N.D. California
- **Decided:** August 1, 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/10639026

## How later opinions describe it (automated extraction)

- discussing a financial elder abuse claim under state law, citing 4 Cal. Welf. & Inst. Code § 15610.30

## Opinion text

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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 MARIE MINICHINO, Case No. 24-cv-04048-LJC

8 Plaintiff,
ORDER GRANTING APPLICATION
9 v. TO PROCEED IN FORMA PAUPERIS

10 LEO LA ROSA, et al., ORDER TO SHOW CAUSE WHY
CASE SHOULD NOT BE DISMISSED
Defendants.
11
Re: Dkt. Nos. 1, 2
12

13 I. INTRODUCTION AND IFP APPLICATION
Plaintiff Marie Minichino, pro se, brings employment claims against Defendants Leo La
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Rosa, Marshall Meyer, Nick Cohen Meyer, Ruth Lesser, “Mrs. Naimoon,” and Kitt Shoh.
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Sufficient cause having been shown, Minichino’s Application to Proceed in Forma Pauperis (ECF
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No. 2) is GRANTED.
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The Court now reviews the sufficiency of Minichino’s Complaint under 28 U.S.C.
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§ 1915(e)(2)(B). The Complaint lacks factual allegations and does not appear to present any basis
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for federal subject matter jurisdiction. Minichino is therefore ORDERED TO SHOW CAUSE
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why this case should not be dismissed for lack of jurisdiction, by filing no later than August 22,
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2024 either: (1) an amended complaint that cures the defects identified in this Order; or (2) a
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response to this Order explaining why her present Complaint is sufficient to proceed.
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24 II. LEGAL STANDARD FOR REVIEW UNDER § 1915
A court is under a continuing duty to dismiss a case filed without the payment of the filing
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fee whenever it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on
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which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
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1 § 1915(e)(2)(B), the plaintiff may still file the same complaint by paying the filing fee. Such
2 dismissal is not on the merits, but rather an exercise of the court’s discretion under the statute
3 governing cases filed in forma pauperis. Denton v. Hernandez, 504 U.S. 25, 32 (1992). Courts
4 conducting this review assess whether the complaint “lacks an arguable basis either in law or in
5 fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
6 Under § 1915(e)(2)(B)(i), frivolousness “embraces not only the inarguable legal
7 conclusion, but also the fanciful factual allegation.” Id. A complaint may be dismissed as
8 “factually frivolous only if the facts alleged are clearly baseless, a category encompassing
9 allegations that are fanciful, fantastic, and delusional.” Denton, 504 U.S. at 32–33.
10 A court must dismiss a complaint for failure to state a claim under § 1915(e)(2)(B)(ii)
11 where it is based solely on conclusory statements or naked assertions without any factual basis,
12 lacking sufficient factual allegations to render the claims asserted plausible. See Ashcroft v. Iqbal,
13 556 U.S. 662, 677–78 (2009). Complaints that are “highly repetitious, or confused, or consisted of
14 incomprehensible rambling” also violated the federal pleading standard. Cafasso, United States ex
15 rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011).
16 Complaints filed without counsel must “be liberally construed” and “held to less stringent
17 standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
18 (per curiam). Courts ordinarily must give pro se plaintiffs leave to “amend their complaint unless
19 it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”
20 Franklin v. Murphy, 745 F.2d 1221, 1235 n.9 (9th Cir. 1984).
21 III. SUBJECT MATTER JURISDICTION
22 Federal courts are courts of limited jurisdiction and may only hear cases falling within
23 their subject matter jurisdiction. Courts “have an independent obligation to determine whether
24 subject-matter jurisdiction exists.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Two of the
25 most common grounds for subject matter jurisdiction are diversity jurisdiction under 28 U.S.C.
26 § 1332 (encompassing cases between citizens of different states with more than $75,000 in
27 controversy) and federal question jurisdiction under 28 U.S.C. § 1331 (encompassing cases
1 subject matter jurisdiction over some claims asserted in a complaint, the court may also exercise
2 supplemental jurisdiction over related claims. 28 U.S.C. § 1367(a).
3 A. Minichino Has Not Established Diversity Jurisdiction
4 Minichino checked a box indicating that her case falls within diversity jurisdiction
5 “because none of the plaintiffs live in the same state as any of the defendants and the amount of
6 damages is more than $75,000.” Compl. (ECF No. 1) at 2. The basic diversity jurisdiction statute,
7 28 U.S.C. § 1332(a), provides for jurisdiction if no plaintiff is a citizen of the same state as any
8 defendant and the amount in controversy exceeds $75,000. An individual’s citizenship is
9 established not necessarily by current residence by instead by their state of “domicile,” which is
10 defined for this purpose as the last state where the individual lived with an intent to remain.
11 Adams v. W. Marine Prods., Inc., 958 F.3d 1216, 1221 (9th Cir. 2020); Kanter v. Warner-Lambert
12 Co., 265 F.3d 853, 857 (9th Cir. 2001).
13 Minichino does not address any party’s state of citizenship, but she alleges that at least
14 four of the five Defendants reside at the same Walnut Creek, California address as Minichino
15 herself. Compl. at 2. Although a party’s state of residence is not always the same as their state of
16 citizenship, it is Minichino’s burden to show that no defendant is a citizen of the same state as her
17 if she wishes to invoke diversity jurisdiction under § 1332(a), and her present Complaint does not
18 meet that burden. Kanter, 265 F.3d at 857–58. Even if Minichino had alleged diversity of
19 citizenship, her bare demand for millions of dollars in damages (Compl. at 9) is not supported by
20 any factual allegations suggesting that the amount in controversy exceeds $75,000. See, e.g.,
21 Byars v. Hot Topic, Inc., 656 F. Supp. 3d 1051, 1061 (C.D. Cal. 2023) (“In the Court’s view, [a]
22 vague and conclusory allegation, without a single factual contention in support, is insufficient to
23 plausibly allege the jurisdictional threshold.”). The Court therefore appears to lack jurisdiction
24 under § 1332(a).
25 B. Minichino Has Not Established Federal Question Jurisdiction
26 Minichino also checked a box to assert federal question jurisdiction under 28 U.S.C.
27 § 1331, but her allegations do not establish jurisdiction under that statute, either. She offers vague
1 Compl. at 2, but she cites no statute supporting such a theory under federal law, and the Court is
2 not aware of any such federal law. Cf., e.g., Davis v. RiverSource Life Ins. Co., 240 F. Supp. 3d
3 1011, 1018–20 (N.D. Cal. 2017) (discussing a financial elder abuse claim under state law, citing
4 Cal. Welf. & Inst. Code § 15610.30). A purported federal claim that “is wholly insubstantial and
5 frivolous” does not confer jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89
6 (1998) (quoting Bell v. Hood, 327 U.S. 678, 682–83).
7 In a section of her form Complaint calling for a statement of facts, Minichino offers the
8 following list: “(1) Employment Fraud; (2) Financial Fraud Against Elder; (3) Failure to pay min
9 Wage or Taxes; (4) Elder Abuse; (5) Failure to pay overtime; (6) Failure to give Breaks;
10 (7) Failure to give days off.” Compl. at 3. Minichino does not assert that any of those claims arise
11 under federal law. To the extent some of them might implicate federal labor law, like a claim for
12 failure to pay overtime, Minichino has not offered even the most basic factual allegations to
13 support such claims, like an allegation that any or all of the defendants employed her, much less
14 factual allegations describing the hours she worked and the amount she was paid. Without factual
15 allegations to support them, those bare assertions of legal violations do not state a claim on which
16 relief may be granted. See Iqbal, 556 U.S. at 677–78. In the absence of any factual allegations,
17 the claims appear to be “wholly insubstantial” such that they do not establish jurisdiction. See
18 Steel Co., 523 U.S. at 89.
19 Minichino goes on to list four claims on separate pages of her Complaint, as follows.
20 1. Claim 1
21 First, Minichino asserts a claim for “Federal Financial Fraud,” but offers no factual
22 allegations at all to support that claim, and does not identify statute or other legal authority on
23 which she bases it. Compl. at 5. Claim 1 therefore does not assert any cognizable or identifiable
24 violation of federal law.
25 2. Claim 2
26 Next, Minichino lists “Employment Fraud” as “Claim 2,” also writing “Tax Fraud” and
27 “Social Security Fraud” below that heading. Compl. at 6.
1 identify any law requiring Defendants to make such payments or allowing her to sue for their
2 failure to do so. Federal unemployment benefits are funded through taxes imposed by the Federal
3 Unemployment Tax Act (FUTA). As far as this Court is aware, every district court to consider the
4 issue has held that FUTA does not create a private right of action that allows an employee to sue
5 an employer who failed to pay taxes required by that statute. See, e.g., Glanville v. Dupar, Inc.,
6 727 F. Supp. 2d 596, 602 (S.D. Tex. 2010) (citing other district court decisions, and noting that no
7 court of appeal has addressed this question). Accordingly, it does not appear that Minichino can
8 base a federal claim on Defendants’ failure to contribute to an unemployment fund.
9 To the extent that Minichino’s assertion of “Social Security Fraud” or “Tax Fraud” implies
10 a failure to pay Social Security taxes, that is also no basis for a private claim. The Federal
11 Insurance Contributions Act (FICA) requires employers and employees to pay taxes to fund the
12 Social Security Trust Fund, which is the source of federal disability and retirement benefits.
13 Although the federal government can bring an enforcement action if an employer fails to pay those
14 taxes, an employee has no right to enforce that requirement by bringing a lawsuit on her own
15 behalf against the employer. Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 68–69 (3d Cir.
16 2008); McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718 (11th Cir. 2002); Ohio Nat’l Life
17 Assur. Corp. v. Brown, No. CV-07-3248 CAS (CWx), 2007 WL 4208295, at *5 (C.D. Cal. Nov.
18 26, 2007).
19 This second claim also asserts that Minichino worked sixty days straight without a day off,
20 which she characterizes as “unlawful.” Compl. at 6. The primary federal law addressing working
21 hours and compensation is the Fair Labor Standards Act (FLSA). This Court is not aware of any
22 provision of the FLSA, or any other federal law, regulating the number of consecutive days an
23 employee can work. See U.S. Dep’t of Labor, “Fair Labor Standards Act Advisor,”
24 https://webapps.dol.gov/elaws/whd/flsa/screen6.asp (“[T]he FLSA doesn’t limit the number of
25 hours in a day, or days in a week an employee may be required or scheduled to work . . . if the
26 employee is at least 16 years old.”).1
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1 Minichino concludes this claim with the following assertion:

2 When I got hurt asked for 4 days off - cancelled all my hours but never
fired me
3 Tried to Trick me into leaving
Threatened Violence
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Compl. at 6. Although any threat of violence in the workplace raises serious concerns, Minichino
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has not asserted that this conduct violated any particular federal law, and she has not offered
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sufficient factual allegations for the Court to make such a determination on its own.
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Claim 2 therefore does not assert any cognizable or identifiable violation of federal law.
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3. Claim 3
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The eighth page of Minichino’s Complaint reads in its entirety as follows:
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Claim 3 Elder Abuse
11 I reserve the right to amend at any time
12 Compl. at 8.
13 In the absence of factual allegations or any reference to a particular law, this claim does
14 not assert any cognizable or identifiable violation of federal law.
15 4. Claim 4
16 Minichino’s fourth claim is for an “Emotional Support Animal Violation.” Compl. at 7.
17 She asserts that defendants “kidnapped [her] emotional support kittens,” and that she is “lost
18 without them.” Id.
19 This claim does not specifically invoke any federal law, and does not include sufficient
20 allegations to determine whether Minichino might have a viable claim under any federal law. The
21 Americans with Disabilities Act, for example, can protect a plaintiff’s right to a service animal
22 under some circumstances, but it sets requirements for—among other things—an animal’s training
23 and a plaintiff’s disability, which Minichino has not addressed in any way, and it is generally
24 limited to service dogs, as opposed to other animals like kittens. See, e.g., C. L. v. Del Amo Hosp.,
25 Inc., 992 F.3d 901, 910–11 (9th Cir. 2021) (citing 28 C.F.R. § 36.104).
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many states (including California) have laws mandating rest and meal breaks for employees, the
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FLSA does not include a provision authorizing an employee to bring a civil action for failure to
1 Claim 4 therefore does not assert any cognizable or identifiable violation of federal law.
2 Oe Ok
3 In the absence of any substantial federal claim, Minichino’s Complaint does not appear to
4 || fall within federal question jurisdiction under 28 U.S.C. § 1331. With no basis for federal
5 || jurisdiction apparent, this Order does not reach the question of whether Minichino might be able
6 || to assert a claim under state law.
7 || IV. CONCLUSION
8 For the reasons discussed above, Minichino is ORDERED TO SHOW CAUSE why this
9 case should not be dismissed for lack of subject matter jurisdiction.
10 No later than August 22, 2024, Minichino must file either: (1) an amended complaint that
11 cures the defects identified above; or (2) a response to this Order explaining why is her current
12 || Complaint is sufficient to proceed. Any amended complaint will completely replace the current
5 13 Complaint, and must include all allegations that Minichino wishes to present and all claims that
14 || she intends to pursue in this case. If Minichino does not file a response or amended complaint by
15 that deadline, or the response or amended complaint does not resolve the issues identified in this
16 Order, this case will be reassigned to a United States district judge with a recommendation that the
3 17 case be dismissed.
S 18 If Minichino continues to proceed without an attorney, the Court encourages her to review
19 || the section “Representing Yourself” on the Court’s website, located at
20 || https://www.cand.uscourts.gov/pro-se-litigants/, Minichino is also encouraged to contact the
21 Court's Legal Help Centers. Attorneys at the Legal Help Centers can provide basic assistance and
22 advice to parties representing themselves but cannot provide legal representation. Minichino may
23 schedule an appointment by calling 415-782-8982 or emailing fedpro@ sfbar.org.
24 IT IS SO ORDERED.
25 Dated: August 1, 2024
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7 Zi, Arty —
‘A J. CISNEROS
28 ited States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10639026. Public record. Not legal advice.