Opinion
CV-22-01874-PHX-JZB
01-03-2023
Verna Kaye Brown, Plaintiff, v. Joletha Faith Franklin, Defendant.
TO THE HONORABLE STEPHEN M. MCNAMEE, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Hon. Orable John Z. Boyle, United States Magistrate Judge.
This Report and Recommendation is filed pursuant to General Order 21-25. Pending before the Court is Plaintiff's Application to Proceed in Forma Pauperis. (Doc. 2.) The Court will recommend the application (doc. 2) be granted. The Court will screen Plaintiff's complaint (doc. 1) pursuant to 28 U.S.C. § 1915(e)(2) and recommend Plaintiff's complaint be dismissed without prejudice.
General Order 21-25 states in relevant part:
When a United States Magistrate Judge to whom a civil action has been assigned pursuant to Local Rule 3.7(a)(1) considers dismissal to be appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1) due to incomplete status of election by the parties to consent or not consent to the full authority of the Magistrate Judge,
IT IS ORDERED that the Magistrate Judge will prepare a Report and Recommendation for the Chief United States District Judge or designee.
IT IS FURTHER ORDERED designating the following District Court Judges to review and, if deemed suitable, to sign the order of dismissal on my behalf: Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee. . .
I. Application to Proceed in Forma Pauperis.
In the Application to Proceed in Forma Pauperis, Plaintiff declares under penalty of perjury that Plaintiff is unable to pay the filing fee and other costs associated with this case. Plaintiff has presented financial information to support the application. Given Plaintiff's lack of significant income, the Court will recommend granting the application.
II. Plaintiff's Complaint.
A. Statutory Screening of Complaints Filed in Forma Pauperis.
For cases proceeding in forma pauperis, Congress provided that a district court “shall dismiss the case at any time if the court determines” that the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (noting that section 1915(e) applies to all in forma pauperis complaints, not merely those filed by prisoners). Accordingly, “section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.” Lopez, 203 F.3d at 1127.
Rule 8(a) of the Federal Rules of Civil Procedure provides that to state a claim for relief, a complaint must contain (1) “a short and plain statement of the grounds for the court's jurisdiction,” (2) “a short and plain statement of the claim showing that the pleader is entitled to relief,” and (3) “a demand for the relief sought.” The complaint also must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Further, the complaint must also provide each defendant with a fair opportunity to frame a responsive pleading. McHenry v. Renne, 84 F.3d 1172, 1176 (9th Cir. 1996).
B. Claim.
Plaintiff, a resident of Phoenix, Arizona, claims that Defendant Joletha Franklin, a resident of Phoenix, Arizona and Denver, Colorado, carried out “fraud and misappropriation of funds.” (Doc. 1 at 3.) Plaintiff claims “there was a proceeding and a settlement I collected some funds the check went to William Franklin's address then he gave it to Joletha [Franklin] and Andrea.” (Doc. 1 at 4.) Plaintiff alleges the amount in controversy is 10,000,000 dollars. (Id.) The form of relief Plaintiff seeks is “a financial investigation on all parties involved.” (Id.)
Plaintiff claims diversity of citizenship as the basis for federal jurisdiction where Plaintiff is an Arizona resident and Defendant Franklin is alleged to be a resident of both Colorado and Arizona. (Doc. 1 at 3.) To establish jurisdiction, Plaintiff must allege, however, that the parties are citizens of different states. See 28 U.S.C. § 1332 (stating federal courts have original jurisdiction over actions where the amount in controversy exceeds $75,000 and the parties are citizens of different states). Citizenship is distinguishable from residency. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). A persons' state citizenship is “determined by her state of domicile, not her state of residence. A person's domicile is her permanent home, where she resides with the intention to remain or to which she intends to return.” Kanter, 265 F.3d at 857 (citation omitted). The party asserting jurisdiction bears the burden to prove the parties are of diverse state citizenship. Id. Plaintiff has not alleged Defendant is a citizen of a state other than Arizona. Indeed, Plaintiff claims Defendant is a resident of both Arizona and Colorado. Plaintiff has thus not alleged sufficient facts to assert diversity jurisdiction under 28 U.S.C. § 1332. See Fed.R.Civ.P. 8(a) (stating Plaintiff must allege “a short and plain statement of the grounds for the court's jurisdiction”).
In addition, Plaintiff's complaint has not plausibly alleged an amount in controversy that exceeds $75,000. See 28 U.S.C. § 1332. Although the complaint alleges Plaintiff was deprived of a check from the settlement of a legal claim, Plaintiff does not state the value of the settlement, or the amount owed to Plaintiff. (Doc. 1 at 4.) Plaintiff has not alleged any facts to support the assertion that the value of the claim is $10,000,000. (Id.) Plaintiff has therefore not shown this Court has jurisdiction over her claim based on diversity of citizenship under 28 U.S.C. § 1332.
Plaintiff has also failed to state a claim entitling Plaintiff to relief. To state a claim for fraud under Arizona Law, Plaintiff must allege nine elements: “(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) the speaker's intent that it be acted upon by the recipient in a manner reasonably contemplated; (6) the hearer's ignorance of the falsity of the representation; (7) the hearer's reliance on the truth of the representation; (8) the right to rely on it; and (9) consequent and proximate injury.” McManus v. Am. Exp. Tax & Bus. Servs., Inc., 67 F.Supp.2d 1083, 1089 (D. Ariz. 1999) (citing Echols v. Beauty Built Homes, Inc., 132 Ariz. 498, 647 P.2d 629, 631 (1982)). Federal Rule of Civil Procedure 9(b) further provides that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be plead with particularity.” Fed.R.Civ.P. 9(b). “‘A pleading is sufficient under rule 9(b) if it identifies the circumstances constituting fraud so that a defendant can prepare an adequate answer from the allegations.'” Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987) (quoting Semegen v. Weidner, 780 F.2d 727, 735 (9th Cir. 1977)). “Statement of the time, place and nature of the alleged fraudulent activities are sufficient.” Id.
Plaintiff has not alleged the elements of fraud or another claim. Plaintiff has not alleged that Defendant made a false representation or that Plaintiff relied on any of Defendant's statements to Plaintiff's detriment. Plaintiff thus has not stated a claim for fraud or other claim entitling Plaintiff to relief. Accordingly, the Court will recommend Plaintiff's complaint be dismissed without prejudice.
IT IS RECOMMENDED that Plaintiff's Application to Proceed in Forma Pauperis (doc. 2) be granted.
IT IS FURTHER RECOMMENDED that Plaintiff's Complaint (doc. 1) be dismissed without prejudice, and that Plaintiff be afforded 30 days to file a first amended complaint correcting the above listed deficiencies.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rules of Appellate Procedure, Fed. R. App. P. 4(a)(1), should not be filed until entry of the district court's judgment. Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure, objections to the Report and Recommendation may not exceed ten (10) pages. If objections are not timely filed, the party's right to de novo review by the District Judge is waived. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).