Opinion
23-cv-2083-JO-MMP
08-02-2024
MEL MARIN, Plaintiff, v. LARRY DALE ROSS, JR.; ROADRUNNER SCOOTERS LLC, Defendants.
ORDER GRANTING PLAINTIFF'S REQUEST TO PROCEED IN FORMA PAUPERIS AND SCREENING PLAINTIFF'S COMPLAINT PURSUANT TO 28 U.S.C. § 1915(A)
HONORABLE JINSOOK OHTA, UNITED STATES DISTRICT JUDGE
Pro se plaintiff Mel Marin alleges breach of contract and other state law tort claims against Defendants Larry Dale Ross, Jr. and RoadRunner Scooters LLC (“Defendants”) for refusing to sell him a scooter. Dkt. 7. Plaintiff also filed a motion for leave to proceed in forma pauperis (“IFP”). Dkt. 8, (“IFP Motion”). For the reasons below, the Court grants Plaintiff's motion to proceed IFP and dismisses his complaint upon screening pursuant to 28 U.S.C. § 1915(a).
I. BACKGROUND
Plaintiff's lawsuit stems from his attempted purchase of a motorized scooter from Defendants. See generally Dkt. 7, First Amended Complaint (“FAC”). On January 2, 2022, Plaintiff ordered a motorized scooter from Defendants' online store for $1,500. Id. ¶ 6. In order to confirm the purchase, NoFraud, a third-party company affiliated with Defendants, asked Plaintiff to verify certain personal and financial information such as his driver's license number, address, date of birth, and last four digits of his credit card number. Id. ¶¶ 10-12. When prompted to provide this information, Plaintiff allegedly “did an investigation through the internet and determined that [NoFraud] does not exist and was not lawfully doing business in New York City or anywhere else.” Id. ¶ 15. Plaintiff apparently concluded from this investigation that “NoFraud was a ‘front,' a criminal enterprise collecting private records to sell to buyers for identity theft and that these Defendants were getting paid by [NoFraud] to supply them with customers' private records.” Id. Plaintiff declined to verify his personal information through NoFraud, and, as a result, Defendants canceled the sale and provided Plaintiff with a refund for the purchase price of the scooter. Id. ¶ 80.
Based on these facts, Plaintiff initiated this action to complain that Defendants illegally (1) provided his personal information to third party NoFraud and (2) canceled Plaintiff's scooter purchase. See generally id. For the above conduct, Plaintiff brings claims for breach of contract, promissory fraud, conversion, invasion of privacy, and intentional and negligent infliction of emotional distress. Id. Plaintiff also alleges that he suffered the following personal hardships and financial consequences as a result of Defendants' actions:
• He suffered $1,500 worth of damages due to Defendants' failure to deliver the scooter. Id. ¶ 64.
• Because he did not have a scooter, he could not check his mail for court orders and was therefore unable to respond to court orders. As a result, he lost two lawsuits which he valued at a combined $7.8 million. Id. ¶¶ 31, 64.
• Because Defendants failed to deliver Plaintiff's scooter, he was forced to buy a lower quality scooter. This scooter broke while Plaintiff was on his way to the airport for a flight to appear in another lawsuit. He missed his flight, and, as a result, missed a deposition. As a result of this missed deposition, the judge subsequently dismissed Plaintiff's case which he valued to be worth $22.9 billion. Id. ¶¶ 33-35, 37.
• He suffered “mental strain and emotional distress” from missing his flight due to the lower-quality scooter,and, consequently, had to go to the hospital for internal bleeding. Id. ¶¶ 35, 105. He was at the hospital for five hours and was billed approximately $4,000. Id. at ¶¶ 35-36. While he does not include the hospital bill in his claims for damages, he alleges he suffered emotional distress worth $100,000 due to the stress of missing his flight. Id. ¶ 118.
• The failure of Plaintiff's lawsuits (caused by the lack of a functioning scooter) also led to lost wages. Plaintiff claims that, because some unidentified cases were progressing slowly, he could not pursue a career as a patent agent and ultimately lost out on $706,810 in wages. Id. ¶ 39.
• Because Defendants' actions compromised the security of his credit card, he spent 50 hours obtaining a new debit card. Id. ¶ 42. This time cost him $30,000. Id. ¶ 64.
• He also spent 36 hours looking for a replacement scooter costing him $21,600. Id. ¶¶ 64, 82.
While Plaintiff broadly alleges that his emotional distress stemmed from Defendants' criminal scheme, see FAC at ¶ 105, the rest of this pleading clarifies that his emotional distress was caused by his missed flight and his accompanying fear of losing his lawsuits. See id. at ¶¶ 34-39, 64, 106.
In total, Plaintiff claims that these facts entitle him to approximately $23 billion dollars plus an unspecified amount in punitive damages. Id. ¶ 118.
II. MOTION TO PROCEED IFP
Plaintiff has not prepaid the civil filing fee and instead requests to proceed IFP, claiming an inability to pay. A plaintiff instituting any civil action, suit, or proceeding in a federal district court must pay a filing fee of $405. 28 U.S.C. § 1914(a). However, a district court may waive the filing fee by granting the plaintiff leave to proceed IFP. 28 U.S.C. § 1915(a)(1). To proceed IFP, a plaintiff must submit an affidavit that includes a statement of all assets and demonstrates an inability to pay the filing fee. 28 U.S.C. § 1915(a); see also S.D. Cal. Civ. R. 3.2. An affidavit is “sufficient where it alleges that the [plaintiff] cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citation omitted). “The granting or refusing of permission to proceed [IFP] is a matter committed to the sound discretion of the district court.” Skelly v. U.S. Dep't of Educ., 2019 WL 6840398, at *2 (S.D. Cal. Dec. 16, 2019) (quoting Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)).
Here, Plaintiff has sufficiently demonstrated that he is unable to pay the civil filing fee. In support of his IFP motion, Plaintiff has attached an affidavit in which he states that he has a monthly income of $1,180 and monthly expenses of $1,330. IFP Motion at 2, 45. Additionally, he claims that he owns a car worth $200 and has a total of $65 combined between cash and his bank accounts. Id. at 2-3. Based on this information, the Court finds that Plaintiff is unable to pay the required $405 civil filing fee. See Escobedo, 787 F.3d at 1234.
III. LEGAL STANDARD
Because Plaintiff has been granted leave to proceed IFP, his Complaint must undergo a sua sponte screening for dismissal. A complaint filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the Court to the extent it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”).
“Failure to state a claim under § 1915A incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). While detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim. Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although failure to state a claim under § 1915(e) incorporates the above Rule 12(b)(6) standards, a Pro se litigant need only satisfy a “low threshold” to “proceed past the screening stage.” Wilhelm, 680 F.3d at 1121, 1123.
When a court dismisses a complaint, it must then decide whether to grant leave to amend. Federal Rule 15(a) provides that a district court should “freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a). A district court has discretion to deny leave to amend when a proposed amendment would be futile. Chappel v. Lab. Corp. of America, 232 F.3d 719, 725-26 (9th Cir. 2000). Amendment is futile “if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (overruled on other grounds).
IV. DISCUSSION
The Court will address below whether Plaintiff has adequately pled that Defendants' actions caused Plaintiff the myriad damages that he claims, including the loss of lawsuits, the forfeiture of career opportunities, and the loss of time. It will then examine whether the amount in controversy requirement of diversity jurisdiction has been satisfied.
A. Refusal to Sell Scooter to Plaintiff
Plaintiff claims that Defendants breached their contract and committed the tort of conversion by refusing to sell him the scooter that he attempted to buy. For breach of contract claims, a required element is that the defendant's breach proximately caused the plaintiff's damage. Troyk v. Farmers Grp., Inc., 171 Cal.App.4th 1305, 1353 (2009 (“Implicit in the element of damage is that the defendant's breach caused the plaintiff's damage.”); see also Cal. Civ. Code § 3300 (“For the breach of an obligation arising from contract, the measure of damages . . . is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby....”). A defendant's conduct is the proximate cause of plaintiff's harm if the conduct was a “substantial factor in causing damage to the plaintiffs.” Troyk, 171 Cal.App.4th at 1353. For tort claims like conversion, a plaintiff must similarly show that defendant's conduct was the proximate cause (i.e., a “substantial factor”) of the alleged damages. San Diego Gas & Elec. Co. v. San Diego Reg'l Water Quality Control Bd., 36 Cal.App. 5th 427, 436 (2019) (“In California tort actions, the substantial factor test is used to determine the element of causation.”).
Whether in tort or contract, claims for damages must be sufficiently certain and not merely conjectural. Scognamillo v. Herrick, 106 Cal.App.4th 1139, 1151 (2003). “A force which plays only an ‘infinitesimal' or ‘theoretical' part in bringing about injury, damage, or loss is not a substantial factor.” Bockrath v. Aldrich Chem. Co., 21 Cal.4th 71, 79 (1999). Thus, a plaintiff may not claim contract damages which are speculative, attenuated, or rely on uncertain outcomes. See (d) [§ 1718] Certainty, 6 Witkin, Summary 11th Torts § 1718 (2024); see also Scognamillo, 106 Cal.App.4th at 1153.
Here, Plaintiff has failed to allege that Defendant's failure to sell him the scooter caused most of the injuries he is claiming. Plaintiff alleges that because Defendants did not sell him the scooter he desired, he (1) spent 36 hours looking for a replacement scooter; (2) suffered a $1,500 loss for the value of the scooter; and (3) purchased an inferior scooter that caused him to miss flights to depositions and court hearings, which in turn caused him to suffer $100,000 in emotional distress, $358,405 in unpaid wages, and lose lawsuits worth approximately $23 billion in damages. See FAC ¶¶ 64, 75.
Without opining on whether Plaintiff has adequately pled damages arising from the time he spent obtaining a replacement scooter, the Court finds that his remaining damages were not caused by Defendants. Because Defendants refunded Plaintiff the purchase price of the scooter after cancelling the sale transaction, FAC ¶ 80, Plaintiff did not suffer damages based on his initial payment of the $1,500. Little v. Cfs Serv. Corp., 188 Cal.App.3d 1354, 1361 (1987) (holding that a refund of the purchase price is sufficient to restore a plaintiff to their original position). Further, the proposition that Defendants' refusal to sell him their scooter caused him to buy an inferior replacement, which in turn caused him to miss his flights to various court and litigation appearances, is speculative and conjectural at best-this chain of contingent outcomes does not necessarily or logically flow from Defendants' original refusal to sell him the vehicle. See Saelzler v. Advanced Grp. 400, 25 Cal.4th 763, 781 (2001) (holding that tenuous or hypothetical theories of causation are insufficient to meet the “substantial factor” test). Given obvious alternative causal factors such as Plaintiff's decisions to purchase the inferior scooter and opt to ride it to the airport, Plaintiff cannot plausibly allege that Defendant's refusal to sell him his desired scooter substantially caused him to miss his flight and suffer the associated emotional distress. See Leslie G. v. Perry & Assocs., 43 Cal.App.4th 472, 487 (1996) (stating that conduct is the legal cause of an injury where, in the absence of other reasonable causal explanations, it becomes more likely than not that the conduct was a substantial factor). By the same token, Plaintiff's position that he lost certain lawsuits (and the money damages and job opportunities as a patent agent that he would have obtained had he prevailed) only adds further layers of conjecture. Litigation outcomes depend on many factors including the underlying merit of Plaintiff's claims. Without further factual allegations, his conclusory allegation that his scooter-caused absences caused him to lose these suits is insufficient to plead a causal link between the two. The consequences which Plaintiff claims are thus too attenuated to be attributable, under the “substantial factor” test, to the loss of a scooter. See Troyk, 171 Cal.App.4th at 1353; Bockrath, 21 Cal.4th at 79 (“A force which plays only an ‘infinitesimal' or ‘theoretical' part in bringing about injury, damage, or loss is not a substantial factor.”). Because the above claimed damages for the value of the scooter, lost lawsuits and wages, and emotional distress are either invalid or purely speculative, the Court dismisses them from this action. See D'Arrigo Bros, 224 Cal.App.4th at 800 (noting that damages are an essential element of a contract claim).
B. Sharing of Private Personal and Financial Information
Plaintiff also alleges that Defendants shared Plaintiff's private information with a third-party verification company without his consent. In doing so, Plaintiff claims that Defendants committed promissory fraud and invaded his privacy. FAC ¶¶ 65, 83 With regard to this loss of privacy, Plaintiff alleges that he lost $30,000 in time spent on replacing his debit card after his previous card was compromised by Defendant's fraudulent scheme. Id. ¶ 82. He also alleges the same cascading series of events discussed above: being forced to buy a poor-quality replacement scooter, see id. ¶¶ 33-35; missing his flight to a deposition; and suffering emotional distress and losing billions of dollars' worth of lawsuits and two years of patent agent wages. See id. ¶¶ 75, 101.
Without opining on whether Plaintiff has adequately pled damages for the time he spent obtaining a replacement debit card, the Court concludes that he has alleged no connection between the exposure of his private information to the remainder of his claimed damages. Plaintiff has not articulated how the exposure of his private information caused him to miss his flight, which in turn caused him emotional distress and the loss of lawsuits. See generally id. Moreover, as discussed above, any such link could only be conjectural at best. See Leslie G., 43 Cal.App.4th at 487. Because Plaintiff can allege no causal link between Defendants' alleged scheme to obtain his private information and his missed flight and the loss of his lawsuits, he has not stated a claim for the damages associated with them. See Beebe v. Wonderful Pistachios & Almonds LLC, 92 Cal.App. 5th 351, 370 (2023).
C. Punitive Damages
Plaintiff also claims punitive damages in the amount of one-third of Defendant Ross' net worth. Punitive damages are permissible under California law when there is “clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(a). “Malice means ‘despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.'” Hardeman v. Monsanto Co., 997 F.3d 941, 971 (9th Cir. 2021) (quoting Cal. Civ. Code § 3294(c)(1). “Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights,” and “fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Cal. Civ. Code § 3294(c)(b)-(c). Punitive damages are not recoverable for breaches of contract. See Cal. Civ. Code § 3294 (stating that punitive damages are available “[i]n an action for the breach of an obligation not arising from contract”) (emphasis added).
Here, Plaintiff has not pled an entitlement to punitive damages, neither for the failure to sell him a scooter nor for the purported criminal scheme to obtain his private information. First, his bare assertion that punitive damages are warranted because Defendants acted maliciously in failing to sell him the scooter fails as a matter of law because punitive damages are unavailable for breach of contract claims. See Cal. Civ. Code § 3294. Second, while he summarily claims that Defendants acted with malice, fraud, and oppression in “converting” his property interest in the scooter, he pleads no facts which show that their actions rise to that standard of reprehensible behavior. See Cal. Civ. Code § 3294(c); Iqbal, 556 U.S. at 662; see generally FAC. Finally, he pleads no rational, factually based reasons for concluding that the scooter company and the third-party verification company comprised a criminal scheme or that they intentionally sought to defraud him as opposed to verifying his information in order to finalize the scooter sale transaction. See generally FAC. While he characterizes these actions as “severely reprehensible,” id. ¶ 74, conclusory and threadbare allegations are insufficient for him to plausibly allege that a criminal enterprise to defraud was at work. Because punitive damages are unavailable for breach of contract claims and because Plaintiff's complaint is devoid of factual allegations which otherwise show an entitlement to these damages, the Court dismisses his claim for punitive damages.
E. The Amount in Controversy Requirement Is Not Met
The Court will next address whether Plaintiff has sufficiently alleged that the amount in controversy requirement of diversity jurisdiction has been satisfied. Federal courts have subject matter jurisdiction over a case when there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a). Conclusory allegations and attenuated arguments as to the amount in controversy are insufficient to establish diversity jurisdiction. See Deutsche Bank Nat l Tr. Co. v. Galindo, No. ED CV 10-01893-RGK, 2011 WL 662324, at *1 (C.D. Cal. Feb. 11, 2011) (citing Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090-1091 (9th Cir. 2003). Additionally, while punitive damages may be included in calculating the amount in controversy, see Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001), “the mere possibility of a punitive damages award is insufficient to prove that the amount in controversy requirement has been met.” Geller v. Hai Ngoc Duong, No. 10CV1876-BTM CAB, 2010 WL 5089018, at *2 (S.D. Cal. Dec. 7, 2010); see Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403 (9th Cir. 1996). “It must appear to a legal certainty that [plaintiff's] claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938); see Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010).
The Court finds that the amount in controversy in this case does not exceed $75,000. As outlined above, Plaintiff's claims overwhelmingly rely on speculative and attenuated allegations about how Defendants' failure to deliver a $1,500 scooter led to approximately $23 billion in damages for (1) the value of the scooter; (2) the value of his lost lawsuits; (3) lost patent agent wages; and (4) emotional distress. See generally FAC. As such, these claims cannot be considered in calculating the amount in controversy. See Gunaratna, 2019 WL 5295741, at *2. Additionally, while punitive damages may be considered in calculating the amount in controversy, for the reasons outlined in Section IV.C, supra, Plaintiff has not shown an entitlement to punitive damages. Because the amount in controversy in this case, at the very most, amounts to $51,600 (the claimed amounts for time spent on finding a replacement scooter and a new debit card), the Court finds that the jurisdictional amount has not been satisfied. See 28 U.S.C. § 1332(a). Accordingly, because the Court finds to a legal certainty that Plaintiff cannot meet the amount in controversy requirement, the Court dismisses Plaintiff's complaint for lack of subject matter jurisdiction. See 28 U.S.C. § 1332(a); Naffe, 789 F.3d at 1039.
The Court dismisses this case for lack of subject matter jurisdiction without leave to amend because additional facts could not cure the lack of a causal relationship between Defendants' actions and most of the harms alleged by Plaintiff. See Sections IV.A, IV.B, supra; see also Miller, 845 F.2d at 214; Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083, 1088 (9th Cir. 2002) (finding leave to amend futile where “plaintiff cannot cure the basic flaw in their pleading”). Aside from the $51,600 for lost time, Plaintiff's remaining damages claims rest entirely on a convoluted and conjectural causal theory which cannot be cured by amendment. Plaintiff claim for punitive damages, based on his unfounded speculation that Defendants comprised a criminal enterprise, similarly cannot be cured with amendment. Because Plaintiff cannot plausibly allege an entitlement to damages in excess of $51,600 even with amendment, the Court denies leave to amend.
V. CONCLUSION
For the reasons above, the Court sua sponte DISMISSES Plaintiff's complaint without leave to amend for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1915(a). Dkt. 7. The Clerk of Court is DIRECTED to close the case.
IT IS SO ORDERED.