United States District Court, E.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
FOURTEEN-DAY DEADLINE, ECF, 1
Frank Silva, proceeding pro se, filed the complaint in this
action on June 15, 2016. (ECF No. 1.)
to 28 U.S.C. § 1915(e)(2), the Court must dismiss a case
if at any time the Court determines that the complaint fails
to state a claim upon which relief may be granted. In
determining whether a complaint fails to state a claim, the
Court uses the same pleading standard used under Federal Rule
of Civil Procedure 8(a). A complaint must contain "a
short and plain statement of the claim showing that the
pleader is entitled to relief. . . ." Fed.R.Civ.P.
8(a)(2). Detailed factual allegations are not required, but
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)).
complaint must contain sufficient factual matter, accepted as
true, to „state a claim to relief that is plausible on
its face.'" Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). "[A] complaint
[that] pleads facts that are „merely consistent
with' a defendant's liability . . . „stops
short of the line between possibility and plausibility of
entitlement to relief.'" Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 557). Further,
although a court must accept as true all factual allegations
contained in a complaint, a court need not accept a
plaintiff's legal conclusions as true. Iqbal,
556 U.S. at 678.
courts are courts of limited jurisdiction and their power to
adjudicate is limited to that granted by Congress. U.S.
v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Pursuant
to 28 U.S.C. § 1331, federal courts have original over
"all civil actions arising under the Constitution, laws,
or treaties of the United States. "A case „arises
under' federal law either where federal law creates the
cause of action or where the vindication of a right under
state law necessarily turns on some construction of federal
law." Republican Party of Guam v. Gutierrez,
277 F.3d 1086, 1088 (9th Cir. 2002) (internal punctuation
omitted) (quoting Franchise Tax Bd. v. Construction
Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)
(citations omitted)). "[T]he presence or absence of
federal-question jurisdiction is governed by the
„well-pleaded complaint rule, ' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint." Republican Party of Guam, 277 F.3d
at 1089 (citations omitted). Plaintiff brings this action
alleging federal question jurisdiction.
allegations in this action resolve around the filing of his
tax returns. Plaintiff states that he hired Robert Puffer to
file his 2012 tax return. When following up over a period of
months, Mr. Puffer told Plaintiff he needed to provide bank
statements. Mr. Puffer eventually said he was too busy to
complete the tax return, so Plaintiff took his taxes to
Gilbertos Tax to have his tax returns completed. Gilbertos
told him they needed more bank statements which he provided
to them. Gilbertos only completed his 2012 and 2013 taxes and
requested more bank statements. Gilbertos completed his 2014
taxes and found that he owed $24, 600.00. Plaintiff
questioned the amount owed so took his taxes to Garcia's
Bookkeeping for an amended 2014 return and to complete his
2015 taxes. In his request for damages, Plaintiff states he
asked Marie Kelly for a copy of his 2012 tax return and she
told him she would give him a copy if he dismissed his small
claims action. It is unclear from the complaint what
Plaintiff's claims are in this action.
allegations in this action do not provide a cause of action
based upon federal law. Plaintiff is advised that the fact
that his injury might involve his federal tax liability does
not establish jurisdiction to adjudicate claims against his
tax preparers. For this action to arise under federal law,
Plaintiff must establish that "federal law creates the
cause of action" or his "asserted right to relief
depends on the resolution of a substantial question of
federal law." K2 America Corp. v. Roland Oil & Gas,
LLC, 653 F.3d 1024, 1029 (9th Cir. 2011).
Rule 15(a) of the Federal Rules of Civil Procedure, a party
may amend the party's pleading once as a matter of course
at any time before a responsive pleading is served.
Otherwise, a party may amend only by leave of the court or by
written consent of the adverse party, and leave shall be
freely given when justice so requires. Fed.R.Civ.P. 15(a).
Rule 15(a) is very liberal and leave to amend „shall be
freely given when justice so requires.'"
Amerisource Bergen Corp. v. Dialysis West, Inc., 465
F.3d 946, 951 (9th Cir. 2006) (quoting Fed.R.Civ.P. 15(a)).
shall be granted an opportunity to amend his complaint to
cure the deficiencies identified in this order. Plaintiff is
advised that in his amended complaint he must identify the
basis for federal jurisdiction in this action, set forth
sufficient facts for the court to infer that his federal
rights were violated, and must state the relief requested.
CONCLUSION AND ORDER
on the foregoing, IT IS HEREBY ORDERED that:
Plaintiff's complaint, filed June 15, 2016, is ...