Ali v. Asura Insurance Services

          FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S COMPLAINT AND MOTION TO PROCEED IN FORMA PAUPERIS OBJECTIONS DUE WITHIN FIFTEEN (15) DAYS (ECF NO. 1)

         I. INTRODUCTION

         Plaintiff Karima K. Ali (“Plaintiff”), appearing pro se, filed a Complaint on May 20, 2016. (ECF No. 1.) The Complaint alleges a breach of contract by Asura Insurance Services. Id. Plaintiff alleges that she “originally filed this complaint in the Superior Court of Fresno” and is filing the current complaint to “try[ ] to mov[e] the process forward” because Fresno County Superior Court has not made sufficient progress in bringing her case to resolution. Plaintiff also seeks to proceed in forma pauperis in this action. The Court has screened the Complaint and Motion to Proceed In Forma Pauperis and makes its recommendations herein, namely, that Plaintiff’s Motion be denied and the Complaint be dismissed.

         II. APPLICATION TO PROCEED IN FORMA PAUPERIS

         As a general rule, all parties instituting any civil action, suit, or proceeding in a district court must pay a filing fee. 28 U.S.C. § 1914(a). However, the Court may authorize the commencement of an action “without prepayment of fees and costs of security therefor, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). Therefore, an action may proceed despite a failure to prepay the filing fee only if leave to proceed in forma pauperis is granted by the Court. See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

         The Ninth Circuit has held that “permission to proceed in forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis status does not violate the applicant’s right to due process.” Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984). The Court has broad discretion to grant or deny a motion to proceed in forma pauperis. O’Laughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990) (a “district court may deny leave to proceed [in forma pauperis] at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit.”). Because, as explained below, Plaintiff’s Complaint is frivolous and without merit, the application to proceed in forma pauperis is denied.

         III. LEGAL STANDARD

         Under 28 U.S.C. § 1915(e)(2), the Court must conduct a review of a pro se complaint to determine whether it “state[s] a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seek[s] monetary relief against a defendant who is immune from such relief.” If the Court determines that the complaint fails to state a claim, it must be dismissed. Id. Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         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, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. at 678.

         In determining whether a complaint states an actionable claim, the Court must accept the allegations in the complaint as true, Hospital Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

         IV. PLAINTIFF’S ALLEGATIONS

         Plaintiff alleges that she initially filed this Complaint in Fresno County Superior Court on April 3, 2012 and that the case is currently pending in that court.^[1] She alleges that she entered into a contract with Defendant to market health care plans but was apparently not paid commissions that she believes she was entitled to receive. Based on this conduct, she asserts causes of action for fraud, breach of contract, conversion, negligence, “fraud and deceit by intentional conversion, ” violation of California Business and Professions Code § 17200, “loss of opportunity, ” and defamation.

         V. DISCUSSION

         Federal courts are courts of limited jurisdiction and lack inherent or general subject matter jurisdiction. Federal courts can adjudicate only those cases which the United States Constitution and Congress authorize them to adjudicate. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994). To proceed in federal court, a plaintiff’s pleading must establish the existence of subject matter jurisdiction. Generally, there are two potential bases for federal subject matter jurisdiction: (1) federal question jurisdiction, or (2) diversity jurisdiction.

         Plaintiff is advised that “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 turn[s] on some construction of federal law.’” Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002), quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983). The presence or absence of federal question jurisdiction is governed by the “well-pleaded complaint rule.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under the ...