JAMES K. CASON, Plaintiff,
CALIFORNIA CHECK CASHING STORES, Defendant.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND UNDER 28 U.S.C. § 1915
JOSEPH C. SPERO, Magistrate Judge.
Plaintiff filed this action against California Check Cashing Stores, asserting claims for "intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, and coercion." Having previously granted Plaintiff's Application to Proceed in Forma Pauperis, the Court now considers whether Plaintiff's Complaint must be dismissed under 28 U.S.C. § 1915(e)(2)(B), which requires dismissal of an in forma pauperis complaint that is frivolous or malicious or fails to state a claim. Plaintiff has consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Court finds that the Court lacks subject matter jurisdiction over Plaintiff's complaint and therefore dismisses Plaintiff's complaint with leave to amend. The Case Management Conference set for Friday, November 8, 2013 is vacated.
II. ALLEGATIONS IN THE COMPLAINT
Plaintiff filed a form complaint asserting federal jurisdiction on the basis of diversity. Complaint at 2. He alleges that Defendant's address is in Dublin, Ohio. Id. at 2. Plaintiff resides in Oakland, California. Id. He further alleges that the events that are the basis of the complaint took place at a California Check Cashing Store located on Telegraph Avenue, in Oakland, California. Id. at 2-3.
In his statement of facts, Plaintiff alleges that on October 19, 2012 he purchased an Insight Cards Debit Card from Defendant California Check Cashing Stores in the amount of $750. Id. at 4. Plaintiff purchased the prepaid debit card in order to buy a saxophone that was being sold on eBay at a sale price of $695. Id. According to Plaintiff, the same saxophone ordinarily sells for nearly $3, 000. Id. The clerk informed Plaintiff that the card was already activated but that he would need to call a number on the back of the card to get a PIN number. Id. Subsequently, Plaintiff learned that the card had not been activated; moreover, he was unable to obtain a PIN through Defendant's (800) number. Id. He tried to obtain a PIN through Defendant's web site, but the number he believed was the PIN was rejected when he attempted to purchase the saxophone on eBay. Id. at 5. Consequently, Plaintiff was unable to purchase the saxophone. Id.
On October 20, 2012, Plaintiff returned to the same location of California Check Cashing Stores where he had purchased the debit card and asked for his money back. Id. Although the clerk agreed to give him a refund, she told Plaintiff he would need to enter his PIN number. Id. When Plaintiff entered the PIN he had obtain on Defendants' web site, it was again rejected, and the clerk called a manager. Id. The manager told Plaintiff and the clerk that the PIN had been rejected because of "irregularities" in Plaintiff's identification. Id. Plaintiff was asked to produce other valid identification but the clerk "categorically and summarily" refused to accept it. Id. According to Plaintiff, "[a]fter about 45 minutes of the clerk and her associate screaming at [him] and vilifying [him] in the store, [he] urinated on [himself] and left the CCCS store totally humiliated." Id.
Plaintiff seeks actual damages in the amount of $3, 960.00, consisting of the $750 used to pay for the debit card ("which the CCCS clerk forced me to use as a credit card and not a debit card pending my producing my Social Security card as additional identification") and $2, 989.00, which is the post-sale price of the saxophone Plaintiff had sought to purchase with the debit card. Id. at 6. In addition, Plaintiff seeks $10, 000, 000 in punitive damages. Id.
A. Legal Standard
Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave to proceed in forma pauperis, courts must engage in a screening and dismiss any claims which: (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2) provides that a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Pleadings that lack such statement have failed to state a claim. In determining whether a plaintiff fails to state a claim, the court assumes that all factual allegations in the complaint are true. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citations omitted). However, "the tenet that a court must accept a complaint's allegations as true is inapplicable to... mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint is "frivolous" under § 1915 where there is no subject matter jurisdiction. See Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987).
Where the complaint has been filed by a pro se plaintiff, as is the case here, courts must "construe the pleadings liberally... to afford the petitioner the benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Further, "a pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)) (internal quotation marks omitted).
B. Subject Matter Jurisdiction
In order to proceed in federal court, Plaintiff's Complaint must establish the existence of subject matter jurisdiction. The Court finds that Plaintiff's Complaint, as ...