(PS) Robinson v. Carmax Auto Finance, LLC

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ANTHONY ROBINSON, JR., Case No. 2:24-cv-2795-DJC-CSK

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

13 v.

14 CARMAX AUTO FINANCE, LLC, et al., (ECF Nos. 1, 2)

15 Defendants.

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17 Plaintiff Anthony Robinson, Jr. is representing himself in this action and seeks

18 leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.)

19 For the reasons that follow, the Court recommends Plaintiff’s IFP application be denied,

20 and the Complaint be dismissed with leave to amend.

21 I. MOTION TO PROCEED IN FORMA PAUPERIS

22 28 U.S.C. § 1915(a) provides that the court may authorize the commencement,

23 prosecution or defense of any suit without prepayment of fees or security “by a person

24 who submits an affidavit stating the person is “unable to pay such fees or give security

25 therefor.” This affidavit is to include, among other things, a statement of all assets the

26 person possesses. Id. The IFP statute does not itself define what constitutes insufficient

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1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R.

28 Civ. P. 72, and Local Rule 302(c).

1 assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In Escobedo,

2 the Ninth Circuit stated that an affidavit in support of an IFP application is sufficient

3 where it alleges that the affiant cannot pay court costs and still afford the necessities of

4 life. Id. “One need not be absolutely destitute to obtain benefits of the in forma pauperis

5 statute.” Id. Nonetheless, a party seeking IFP status must allege poverty “with some

6 particularity, definiteness and certainty.” Id. According to the United States Department

7 of Health and Human Services, the current poverty guideline for a household of one (not

8 residing in Alaska or Hawaii) is $15,650.00. See U.S. Dpt. Health & Human Service

9 (available at https://aspe.hhs.gov/poverty-guidelines).

10 Here, Plaintiff’s IFP application does not make the financial showing required by

11 28 U.S.C. § 1915(a). Plaintiff’s affidavit indicates he has a monthly gross income of

12 $3,000, i.e., $36,000 annually, with a monthly net income of $2,737.50. See ECF No. 2

13 at 1, ¶ 2. Plaintiff states he has $75 in liquid assets and has monthly expenses of

14 approximately $800.2 Id. at 2, ¶¶ 4, 6. Thus, Plaintiff’s gross household income is close

15 to double the 2025 poverty guideline. Further, and more importantly, Plaintiff’s gross

16 income-to-expense ratio leaves him, on average, with approximately $2,200 per month

17 in expendable income. Given this, the Court cannot find Plaintiff unable to pay. See

18 Escobedo, 787 F.3d at 1234. While the Court is sympathetic to Plaintiff’s situation, he is

19 not indigent and numerous litigants in this court have significant monthly expenditures.

20 Thus, the Court recommends Plaintiff’s IFP motion be denied. See Tripati v. Rison, 847

21 F.2d 548 (9th Cir. 1988) (absent consent of all parties, magistrate judge lacks authority

22 to issue dispositive order denying in forma pauperis status).

23 II. SCREENING REQUIREMENT

24 Even if the Court were to grant Plaintiff’s IFP application, Plaintiff’s Complaint

25 warrants dismissal pursuant to 28 U.S.C. § 1915(e)’s required pre-answer screening.

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27 2 Plaintiff indicates he has other debts and financial obligations but does not provide

additional information regarding the amounts. See ECF No. 2 at 2, ¶ 8. Accordingly, the

28 Court did not consider these debts in its calculations.

1 Pursuant to 28 U.S.C. § 1915(e), the court must screen every in forma pauperis

2 proceeding, and must order dismissal of the case if it is “frivolous or malicious,” “fails to

3 state a claim on which relief may be granted,” or “seeks monetary relief against a

4 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith,

5 203 F.3d 1122, 1126-27 (2000) (en banc). A claim is legally frivolous when it lacks an

6 arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In

7 reviewing a complaint under this standard, the court accepts as true the factual

8 allegations contained in the complaint, unless they are clearly baseless or fanciful, and

9 construes those allegations in the light most favorable to the plaintiff. See id. at 326-27;

10 Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.

11 2010), cert. denied, 564 U.S. 1037 (2011).

12 Pleadings by self-represented litigants are liberally construed. Hebbe v. Pliler, 627

13 F.3d 338, 342 & n.7 (9th Cir. 2010) (liberal construction appropriate even post-Iqbal).

14 However, the court need not accept as true conclusory allegations, unreasonable

15 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d

16 618, 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does

17 not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007);

18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

19 To state a claim on which relief may be granted, the plaintiff must allege enough

20 facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A

21 claim has facial plausibility when the plaintiff pleads factual content that allows the court

22 to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

23 Iqbal, 556 U.S. at 678. A pro se litigant is entitled to notice of the deficiencies in the

24 complaint and an opportunity to amend unless the complaint’s deficiencies could not be

25 cured by amendment. See Lopez, 203 F.3d at 1130-31; Cahill v. Liberty Mut. Ins. Co., 80

26 F.3d 336, 339 (9th Cir. 1996).

27 The Court is required to deny an IFP application when the complaint fails to state

28 a claim. 28 U.S.C. § 1915(e)(2). Because the Court finds the Complaint fails to state a

1 claim, as set forth below, Plaintiff’s IFP application should also be denied on this basis.

2 Although the Court finds that the Complaint should be dismissed, it recommends that

3 leave to amend be granted. See Lopez, 203 F.3d at 1127-28.

4 III. THE COMPLAINT

5 Plaintiff brings this action against Defendants CarMax Auto Finance, LLC, Bill

6 Nash (CEO), Enrique Mayor-Mora (CFO), and Tom Folliard (Chairman of the Board).

7 Compl. at 1-2 (ECF No. 1). Plaintiff alleges that on August 11, 2022, Plaintiff purchased

8 a car from Defendant CarMax Auto Finance and entered into a “Retail Installment Sales

9 Contract” with Defendant CarMax Auto Finance to finance the vehicle. Id. at 2. Plaintiff

10 alleges that Defendant CarMax Auto Finance utilized the contract “as securities

11 collateral, thereby securitizing the contract and raising funds through the Federal

12 Reserve custodial system without disclosing” to Plaintiff. Id. at 3. As a result of this,

13 Plaintiff alleges he was subjected to an “unlawful double payment scheme,” resulting in

14 Plaintiff paying twice for the same loan amount. Id. Plaintiff further alleges that in

15 December 2023, Plaintiff sent a recission letter “requesting that Defendant cease further

16 collection activities and rescind the contract based on these undisclosed practices.” Id.

17 Based on a failure to respond, Plaintiff “considers Defendant in default of the recission

18 letter.” Id. Plaintiff alleges the following twenty-five (25) causes of action: (1) breach of

19 contract; (2) fraudulent misrepresentation; (3) violation of California Business &

20 Professions Code §§ 17200, et seq.; (4) violation of California Civil Code § 1750;

21 (5) violation of 15 U.S.C. § 1692e for “[f]alse and [m]isleading [r]epresentations;”

22 (6) violation of 15 U.S.C. § 1692e(4) for “[f]alse [r]epresentation of [l]egal

23 [c]onsequences;” (7) violation of 15 U.S.C. § 1692e(5) for “[t]hreat to [t]ake

24 [u]nauthorized [a]ction;” (8) violation of 15 U.S.C. § 1641 for “Assignee [l]iability;”

25 (9) violation of Uniform Commercial Code § 9-609 for “[u]nauthorized [r]epossesion;”

26 (10) violation of Uniform Commercial Code § 9-625 for “[f]ailure to [c]omply with

27 [e]nforcement [r]equirements;” (11) unjust enrichment; (12) “fraud in the inducement;”

28 (13) breach of contract; (14) conversion; (15) negligent misrepresentation; (16) breach of

1 fiduciary duty; (17) violation of California Business & Professions Code §§ 17200, et

2 seq.; (18) violation of “California Rosenthal Fair Debt Collection Practices Act;”

3 (19) emotional distress; (20) violation of 15 U.S.C. § 1692d for “[h]arassment of [a]buse;”

4 (21) punitive damages; (22) wrongful repossession; (23) breach of duty of good faith and

5 fair dealing; (24) “unlawful conversion of proceeds;” and (25) violation of “California

6 Consumer Legal Remedies Act.” Id. at 3-9. For relief, Plaintiff seeks damages in the

7 amount of $10 million and other forms of relief. Id. at 9-10.

8 IV. DISCUSSION

9 A. Subject Matter Jurisdiction

10 Federal courts are courts of limited jurisdiction and may hear only those cases

11 authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

12 Jurisdiction is a threshold inquiry, and “[f]ederal courts are presumed to lack jurisdiction,

13 ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis, 4 F.3d 1516,

14 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546

15 (1986)); see Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858

16 F.2d 1376, 1380 (9th Cir. 1988). Without jurisdiction, the district court cannot decide the

17 merits of a case or order any relief and must dismiss the case. See Morongo, 858 F.2d

18 at 1380. A federal court’s jurisdiction may be established in one of two ways: actions

19 arising under federal law or those between citizens of different states in which the

20 alleged damages exceed $75,000. 28 U.S.C. §§ 1331, 1332. “Subject-matter jurisdiction

21 can never be waived or forfeited,” and “courts are obligated to consider sua sponte”

22 subject matter jurisdiction even when not raised by the parties. Gonzalez v. Thaler, 565

23 U.S. 134, 141 (2012).

24 The Complaint fails to establish the Court’s subject matter jurisdiction. See

25 Compl. The Complaint raises several federal law claims, however, as detailed below,

26 Plaintiff has yet to assert a properly pleaded federal cause of action. As currently pled,

27 the Complaint does not support a basis for federal question and does not support

28 exercising supplemental jurisdiction over the state law claims. See 28 U.S.C. §§ 1331

1 (“The district courts shall have original jurisdiction of all civil actions arising under the

2 Constitution, laws, or treaties of the United States.”); 1367(a) (“in any civil action of which

3 the district courts have original jurisdiction, the district courts shall have supplemental

4 jurisdiction over all other claims that are so related to claims in the action within such

5 original jurisdiction[.]”).

6 The Complaint also fails to establish diversity jurisdiction. Although Plaintiff

7 satisfies the amount in controversy requirement by stating he seeks $10 million in

8 damages, Plaintiff fails to establish diversity of citizenship. See Compl. at 2, 9. Plaintiff

9 states he is a citizen of California. Id. at 2. However, Plaintiff only includes the citizenship

10 of one of the four defendants: Defendant CarMax Auto Finance. Id. at 2 (Defendant

11 CarMax Auto Finance “is a Delaware Limited Liability Company with its principle place of

12 business in Richmond[,] Virginia.”). The Complaint does not allege the citizenship of the

13 other three named defendants, including Defendants Bill Nash, Enrique Mayor-Mora,

14 and Tom Folliard. See Compl. Because complete diversity of citizenship must be

15 established and such diversity is not alleged here, the Court finds that it also lacks

16 subject matter jurisdiction based on diversity jurisdiction. See Morris v. Princess Cruises,

17 Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (“Section 1332 requires complete diversity of

18 citizenship; each of the plaintiffs must be a citizen of a different state than each of the

19 defendants.”); Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552 (9th Cir.

20 1987) (to establish diversity jurisdiction, a plaintiff must “affirmatively” allege the diverse

21 citizenship of all parties, and that the matter in controversy exceeds $75,000.). However,

22 the Court finds leave to amend is appropriate to provide Plaintiff an opportunity to

23 address the jurisdictional deficiencies discussed above.

24 B. Federal Rule of Civil Procedure 8

25 Plaintiff’s Complaint also does not contain a short and plain statement of a claim

26 as required by Federal Rule of Civil Procedure 8. In order to give fair notice of the claims

27 and the grounds on which they rest, a plaintiff must allege with at least some degree of

28 particularity overt acts by specific defendants which support the claims. See Kimes v.

1 Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). A review of Plaintiff’s Complaint reveals it

2 consists of “[t]hreadbare recitals of the elements” of each cause of action and consists of

3 conclusory allegations that are insufficient to establish Plaintiff’s causes of action. Iqbal,

4 556 U.S. at 678. The Court addresses each of the Complaint’s deficiencies in turn.

5 1. Defendants Bill Nash, Enrique Mayor-Mora, and Tom Folliard

6 The Complaint contains no factual allegations concerning Defendants Bill Nash,

7 Enrique Mayor-Mora, and Tom Folliard and their roles in this contract dispute. See

8 generally Compl. Defendants Nash, Mayor-Mora, and Folliard are only mentioned in the

9 caption of the Complaint. Id. at 1. Based on the lack of factual allegations made against

10 Defendants Nash, Mayor-Mora, and Folliard, Plaintiff has failed to state a claim against

11 these Defendants on this basis. See Merritt v. Countrywide Fin. Corp., 759 F.3d 1023,

12 1033 (9th Cir. 2014) (Under Rule 8, a complaint must provide sufficient “underlying facts

13 to give fair notice and to enable the opposing party to defend itself effectively”). Because

14 the Complaint contains no specific allegations against Defendants Nash, Mayor-Mora,

15 and Folliard, all claims against these Defendants are dismissed with leave to amend.

16 Plaintiff will be provided an opportunity to amend his Complaint, if he can, alleging facts

17 demonstrating Defendants Nash, Mayor-Mora, and Folliard’s involvement or connection

18 in Plaintiff’s alleged violations.

19 2. Federal Law Claims

20 Plaintiff raises five federal causes of action in his Complaint. Plaintiff’s federal

21 claims include the following violations of the federal Fair Debt Collection Practices Act

22 (“FDCPA”): violation of 15 U.S.C. § 1692e for false and misleading representations (Fifth

23 Cause of Action); violation of 15 U.S.C. § 1692e(4) for false representation of legal

24 consequences (Sixth Cause of Action); violation of 15 U.S.C. § 1692e(5) for threat to

25 take unauthorized action (Seventh Cause of Action); and violation of 15 U.S.C. § 1692d

26 for “harassment of abuse” (Twentieth Cause of Action). Compl. at 5-6, 8. Plaintiff also

27 raises a federal claim under the Truth in Lending Act (“TILA”) for violation of 15 U.S.C.

28 § 1641 for assignee liability (Eighth Cause of Action). Compl. at 5-6.

1 The Court addresses each cause of action below. Before doing so, the Court first

2 addresses two threshold deficiencies in the Complaint as it relates to the FDCPA causes

3 of action.

4 First, Plaintiff does not sufficiently allege whether or not the contract at issue falls

5 within the purview of the FDCPA. See Turner v. Cook, 362 F.3d 1219, 1226-27 (9th Cir.

6 2004) (“Because not all obligations to pay are considered debts under the FDCPA, a

7 threshold issue in a suit brought under the Act is whether or not the dispute involves a

8 ‘debt’ within the meaning of the statute.”). The FDCPA defines a “debt” as “any obligation

9 or alleged obligation of a consumer to pay money arising out of a transaction in which

10 the money, property, insurance, or services which are the subject of the transaction are

11 primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5); see also

12 Bloom v. I.C. Sys. Inc., 972 F.2d 1067, 1068-69 (9th Cir. 1992) (explaining that the

13 FDCPA applies only to debts incurred for personal, family or household purposes rather

14 than business or commercial reasons). In its current form, the Complaint does not

15 sufficiently allege whether the alleged debt is a consumer debt covered by the FDCPA.

16 As best as the Court can tell, the “debt” involved is related to a vehicle loan. Compl. at 2-

17 3. Second, Plaintiff does not allege whether Defendant is a “debt collector” under the

18 FDCPA. See generally Compl. As such, these claims fail to state a valid claim upon

19 which relief may be granted pursuant to the FDCPA. See Western Mining Council, 643

20 F.2d at 624.

21 Next, the Court addresses each specific cause of action. For the fifth, sixth, and

22 seventh causes of action, Plaintiff alleges Defendant violated 15 U.S.C. § 1692e by

23 engaging in “false, deceptive, and misleading representations” when it “communicated”

24 to Plaintiff that “nonpayment of [his] debt would result in the immediate repossession of

25 [his] vehicle.” Compl. at 5. Plaintiff alleges that Defendant’s false representations that

26 nonpayment would result in the repossession of his vehicle without a court order was

27 prohibited under the FDCPA. Id. The Complaint does not sufficiently state a claim for

28 relief under 15 U.S.C § 1692e, e(4), and e(5) because the facts do not establish that the

1 alleged debt is covered by the FDCPA and that Defendant as a “debt collector” used

2 “any false, deceptive, or misleading representation or means in connection with the

3 collection of any debt” as stated by 15 U.S.C. § 1692e. In addition, the facts do not

4 allege that the repossession of Plaintiff’s vehicle was not “lawful” and that the “threat to”

5 repossess the car was not one that could “legally be taken.” See 15 U.S.C. § 1692e(4),

6 e(5). For the twentieth cause of action, Plaintiff alleges Defendant violated 15 U.S.C

7 § 1692d for “unlawful and deceptive practices in attempting to repossess [Plaintiff’s]

8 vehicle,” which constituted harassment. Compl. at 8. The Complaint does not sufficiently

9 state a claim for relief under 15 U.S.C § 1692d because it is not clear to the Court how

10 Defendant’s behavior amounts to abusive, harassing, and/or oppressive conduct as

11 required by the FDCP. See Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218,

12 1227 (E.D. Cal. 2010) (“Although there is no bright-line rule, certain conduct generally is

13 found to either constitute harassment, or raise an issue of fact as to whether the conduct

14 constitutes harassment, while other conduct fails to establish harassment as a matter of

15 law.”). Based on the above, the Court finds Plaintiff has failed to state a claim under the

16 FDCPA. However, the Court finds leave to amend is appropriate as to these causes of

17 action.

18 As to Plaintiff’s eighth cause of action, Plaintiff alleges Defendant “failed to comply

19 with its responsibilities as an assignee” by unlawfully repossessing Plaintiff’s vehicle

20 without taking proper legal procedures in violation of 15 U.S.C. § 1641. Compl. at 5-6.

21 Plaintiff’s allegations are conclusory and do not sufficiently allege which specific

22 disclosure statement is in dispute, if any, and what specific violations Plaintiff is alleging

23 Defendant committed under the TILA. Accordingly, the Court finds Plaintiff has failed to

24 state a claim under the TILA. The Court finds, however, leave to amend is appropriate as

25 to Plaintiff’s eighth cause of action.

26 3. State Law Claims

27 Plaintiff raises several state law claims in his Complaint. Compl. at 3-9. They

28 include the following: breach of contract (First & Thirteenth Causes of Action); fraudulent

1 misrepresentation (Second Cause of Action); violation of California Business &

2 Professions Code §§ 17200, et seq (Third & Seventeenth Cause of Action); violation of

3 California Civil Code § 1750 (Fourth Cause of Action); violation of Uniform Commercial

4 Code § 9-609 (Ninth Cause of Action); violation of Uniform Commercial Code § 9-625

5 (Tenth Cause of Action); unjust enrichment (Eleventh Cause of Action); fraud in the

6 inducement (Twelfth Cause of Action); conversion (Fourteenth Cause of Action);

7 negligent misrepresentation (Fifteenth Cause of Action); breach of fiduciary duty

8 (Sixteenth Cause of Action); violation of California Rosenthal Fair Debt Collection

9 Practices Act (Eighteenth Cause of Action); emotional distress (Nineteenth Cause of

10 Action); punitive damages (Twentieth Cause of Action); wrongful repossession (Twenty-

11 Second Cause of Action); breach of duty of good faith and fair dealing (Twenty-Third

12 Cause of Action); unlawful conversion of proceeds (Twenty-Fourth Cause of Action); and

13 violation of California Consumer Legal Remedies Act (Twenty-Fifth Cause of Action). Id.

14 Because Plaintiff has not alleged any cognizable federal claims, the Court will not

15 exercise supplemental jurisdiction over his state law claims at this juncture. The Court

16 finds granting leave to amend is appropriate here. Plaintiff may amend his state law

17 claims, but if he fails to allege a viable federal claim in his amended complaint, the Court

18 may decline to exercise supplemental jurisdiction over his state law claims. See

19 28 U.S.C. § 1367(a).

20 C. Leave to Amend

21 Although the Federal Rules adopt a flexible pleading policy, even a pro se

22 litigant’s complaint must give fair notice and state the elements of a claim plainly and

23 succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). In

24 light of Plaintiff’s pro se status, and because it is at least conceivable that Plaintiff could

25 allege additional facts to state claims upon which relief may be granted, the Court finds it

26 appropriate to grant Plaintiff an opportunity to amend the Complaint. See Lopez, 203

27 F.3d at 1130-31 (indicating that prior to dismissal, the court is to tell the plaintiff of

28 deficiencies in the complaint and provide an opportunity to cure – if it appears at all

1 possible the defects can be corrected).

2 If Plaintiff elects to file an amended complaint, this new pleading shall allege facts

3 establishing the existence of federal jurisdiction and must contain a short and plain

4 statement of Plaintiff's claim. The allegations of the complaint must be set forth in

5 sequentially numbered paragraphs, with each paragraph number being one greater than

6 the one before, each paragraph having its own number, and no paragraph number being

7 repeated anywhere in the complaint. Each paragraph should be limited “to a single set of

8 circumstances” where possible. See Fed. R. Civ. P. 10(b). Forms are available to help

9 plaintiffs organize their complaint in the proper way. They are available at the Clerk's

10 Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 95814, or online at

11 www.uscourts.gov/forms/pro-se-forms.

12 The amended complaint must not require the Court and the defendants to guess

13 at what is being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th

14 Cir. 1996) (affirming dismissal of a complaint where the district court was “literally

15 guessing as to what facts support the legal claims being asserted against certain

16 defendants”). The amended complaint must not require the Court to spend its time

17 “preparing the ‘short and plain statement’ which Rule 8 obligated plaintiffs to submit.” Id.

18 at 1180. The amended complaint must not require the Court and defendants to prepare

19 lengthy outlines “to determine who is being sued for what.” Id. at 1179.

20 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in

21 order to make the amended complaint complete. Local Rule 220 requires that an

22 amended complaint be complete in itself without reference to any prior pleading. As a

23 general rule, an amended complaint supersedes prior complaint(s), and once the

24 amended complaint is filed and served, any previous complaint no longer serves any

25 function in the case. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012).

26 V. CONCLUSION

27 Based upon the findings above, it is RECOMMENDED that:

28 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be DENIED;

1 2. Plaintiffs Complaint (ECF No. 1) be DISMISSED with leave to amend;

2 3. Plaintiff be granted 30 days to file an amended complaint that complies

3 with the instructions provided above; and

4 4. Plaintiff SHALL pay the filing fee at the time of filing the first amended

5 complaint.

6 | These findings and recommendations are submitted to the United States District Judge

7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days

8 || after being served with these findings and recommendations, any party may file written

9 || objections with the Court and serve a copy on all parties. This document should be

10 | captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply

11 || to the objections shall be served on all parties and filed with the Court within 14 days

12 || after service of the objections. Failure to file objections within the specified time may

13 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455

14 | (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

15

16 | Dated: May 7, 2025 Cc (i s □□

7 CHI SOO KIM

18 UNITED STATES MAGISTRATE JUDGE

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