Opinion
No. C-07-6338 EMC.
January 16, 2008
Plaintiffs Wen-Mei You and Hongzhi Sun have filed a complaint against Defendants James W. Ostroff and the University of California, San Francisco, Medical Center, asserting claims for medical malpractice and fraud. Plaintiffs have also filed with the Court an application to proceed in forma pauperis and a request for appointment of counsel. Plaintiffs have consented to proceed before a magistrate judge.
I. DISCUSSION
A. In Forma Pauperis Application
When presented with an application to proceed in forma pauperis, a court must first determine if the applicant satisfies the economic eligibility requirement of 28 U.S.C. § 1915(a). See Franklin v. Murphy, 745 F.2d 1221, 1226 n. 5 (9th Cir. 1984). Section 1915(a) does not require an applicant to demonstrate absolute destitution. See McCone v. Holiday Inn Convention Ctr., 797 F.2d 853, 854 (10th Cir. 1982) (citing Adkins v. E.I. Du Pont de Nemours Co., Inc., 335 U.S. 331, 339 (1948)).
The Court has reviewed the financial affidavit of Ms. You. Although a close call, the court finds that Ms. You and her spouse, Mr. Sun, meet the economic eligibility requirement of § 1915(a), and accordingly the Court grants the application to proceed in forma pauperis.
B. Complaint
Title 28 U.S.C. § 1915(e)(2) requires a court to dismiss any case in which a litigant seeks leave to proceed in forma pauperis if the court determines that the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). In the instant case, it may be that the University has sovereign immunity from suit. However, a larger problem with Plaintiffs' complaint is that, based on the allegations contained therein, it appears that the Court lacks subject matter jurisdiction over the action.
Under 28 U.S.C. § 1331, a federal court has subject matter jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331, but, in the instant case, Plaintiffs have not alleged any federal claims, only state law claims for medical malpractice and fraud. Under 28 U.S.C. § 1332, a federal court also has subject matter jurisdiction when each of the plaintiffs is a citizen of a different state from each of the defendants ( i.e., when there is "complete diversity") and the amount in controversy exceeds $75,000. In the case at bar, however, the parties lack any diversity at all: Plaintiffs appear to be citizens of California as do both Defendants.
The Court therefore dismisses Plaintiffs' complaint on the basis of lack of subject matter jurisdiction. The Court, however, shall give Plaintiffs thirty (30) days to file an amended complaint if, consistent with the requirements of Fed.R.Civ.P. 11, Plaintiffs allege facts that establish federal jurisdiction. If Plaintiffs do not file an amended complaint within thirty days, then the Clerk of the Court shall enter judgment and close the file in this case.
C. Motion for Appointment of Counsel
Because the Court is dismissing Plaintiffs' complaint, it denies their request for appointment of counsel. The denial is without prejudice.
IT IS SO ORDERED.