Jeffrey T. Miller

ORDER

(1) DISMISSING THE COMPLAINT;

(2) DENYING AS MOOT MOTION TO PROCEED IN FORMA PAUPERIS; &

(3) DENYING AS MOOT REQUEST TO PROCEED IN THIS DISTRICT

On November 2, 2011, Plaintiff Cedric Greene, proceeding pro se, filed a complaint for intentional infliction of emotional distress against Defendants McDonald's Restaurant and Chris Resendiz. Plaintiff did not pay the $350 filing fee; instead, he filed a motion to proceed in forma pauperis. Plaintiff has also filed a request to proceed in this district, attaching his declaration. The court notes that Plaintiff has brought the same action in this District before. See Greene v. McDonalds Restaurant et al., 11-CV-610-IEG (NLS) (filed on March 28, 2011). On April 5, 2011, the court transferred the case for lack of proper venue to the Central District, Western Division. The United States District Court for the Central District of California thereafter denied Plaintiff's request to proceed without prepayment of the filing fee, noting that the court lacks jurisdiction over the complaint. For the reasons set forth below, the court sua sponte dismisses Plaintiff's complaint for failure to state a claim and for lack of subject matter jurisdiction, and denies as moot Plaintiff's motion to proceed in forma pauperis and Plaintiff's request to proceed in this district.

All parties instituting any civil action, suit or proceeding in a United States District Court must pay a filing fee. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the court grants the plaintiff leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Proceeding under 28 U.S.C. § 1915(a), a district court must dismiss a case sua sponte if it determines that the action is frivolous or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B).

Plaintiff's two-page complaint against McDonald's Restaurant and Chris Resendiz alleges that Plaintiff requested to take time off from his employment, but Defendants continued to place Plaintiff in the work schedule with the knowledge that Plaintiff would not be able to work. Plaintiff alleges that he was terminated from his employment. On the basis of these allegations, Plaintiff attempts to bring a claim for intentional infliction of emotional distress. Federal Rule of Civil Procedure 8(a)(2) requires that a pleading stating a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The function of this pleading requirement is to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Under California law, "the elements of the tort of intentional infliction of emotional distress are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991). Extreme and outrageous conduct must be "so extreme as to exceed all bounds of that usually tolerated in a civilized community." Davidson v. City of Westminster, 32 Cal. 3d 197, 209 (1982). The court concludes that the allegations in Plaintiff's complaint fail to state a claim for intentional infliction of emotional distress.

Plaintiff's case also lacks proper venue. Plaintiff must bring this action "in: (1) a judicial district where any defendant resides, if all defendants reside in the same State; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . . or a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391(b). A determination of improper venue does not go to the merits of the case, and, therefore, any dismissal on this ground must be without prejudice. In re Hall, 939 F.2d 802, 804 (9th Cir. 1991). Plaintiff's claims appear to have arisen in Los Angeles, California, which is within the jurisdictional confines of the Central District of California, Western Division. See 28 U.S.C. § 84(c)(2). No claim is alleged to have arisen and no Defendant is alleged to reside in the Southern District. See 28 U.S.C. § 84(d). Therefore, venue is proper in the Central District of California, Western Division, pursuant to 28 U.S.C. § 84(c)(2), but not in the Southern District of California. See 28 U.S.C. § 1391(b); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).

Additionally, it appears that this court lacks jurisdiction over Plaintiff's complaint. "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Rasul v. Bush, 542 U.S. 466, 489 (2004). It is presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Here, Plaintiff fails to establish any valid basis for federal subject matter jurisdiction. Plaintiff does not show that this is a civil action "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Plaintiff fails to indicate any federal law that may bring his claim under the jurisdiction of this court. Nor does Plaintiff allege that complete diversity of citizenship of the parties exists to satisfy the jurisdictional basis of 28 U.S.C. § 1332.

The court concludes that the allegations in the complaint fail to state a claim against Defendants, and the court lacks subject matter jurisdiction over the complaint. Accordingly, the court sua sponte dismisses the complaint, and denies as moot Plaintiff's motion to proceed in forma pauperis.

IT IS SO ORDERED.

Hon. Jeffrey T. Miller

United States District Judge