United States District Court, E.D. California
LINDA A. WHITE, Plaintiff
WELLS FARGO HOME MORTGAGE, et al., Defendants.
Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE
proceeding in this action pro se, has requested leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
This proceeding was referred to this court by Local Rule
302(21), pursuant to 28 U.S.C. § 636(b)(1).
has not completed her in forma pauperis application. Although
the form states that plaintiff is employed, plaintiff has not
provided the amount of her take home salary or wages, the pay
period, and the name and address of her employer. Plaintiff
also states that she receives funds from “disability or
workers compensation payments” and “other
sources, ” but has not described each source of money,
the amount received, and what plaintiff expects to continue
to receive. Accordingly, the request to proceed in forma
pauperis will be denied without prejudice. Plaintiff will be
directed to complete another in forma pauperis application
that is complete.
determination that plaintiff may proceed in forma pauperis
does not complete the required inquiry. Pursuant to 28 U.S.C.
§ 1915(e)(2), the court is directed to dismiss the case
at any time if it determines the allegation of poverty is
untrue, or if the action is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief against an immune defendant.
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989); Franklin, 745 F.2d at 1227.
complaint must contain more than a “formulaic
recitation of the elements of a cause of action;” it
must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
1965 (2007). “The pleading must contain something
more...than...a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action.”
Id., quoting 5 C. Wright & A. Miller, Federal
Practice and Procedure 1216, pp. 235-235 (3d ed. 2004).
“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
“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.
pleadings are liberally construed. See Haines v.
Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96
(1972); Balistreri v. Pacifica Police Dep’t.,
901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no
amendment can cure the defects of a complaint, a pro se
plaintiff proceeding in forma pauperis is entitled to notice
and an opportunity to amend before dismissal. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987);
Franklin, 745 F.2d at 1230.
complaint names Wells Fargo Home Mortgage (“Wells
Fargo”) and LeesaWhitt-Potter, Senior Vice-President,
as defendants. Although the complaint mentions the Fraud
Enforcement Recovery Act of 2009 (“FERA”), the
complaint contains no facts supporting plaintiff’s
conclusory allegation that Wells Fargo denied her requests
for loan modification. Even if plaintiff could supply the
facts on amendment, however, such as the dates of her
requests and Wells Fargo’s alleged denials, plaintiff
could not proceed under the FERA.
2009, Congress amended the False Claims Act to include
mortgage lending businesses. United States v.
Grasso, 724 F.3d 1077, 1088 (9th Cir. 2013). Although
FERA permits civil actions by private persons for violations
of 31 U.S.C. § 3729, such actions are subject to strict
procedural requirements, including that plaintiff must file a
qui tam action which in turn requires her to be
represented by counsel, and file in camera.
Klaizner v. Countrywide Financial, 2015 WL 627927 at
*3 (D. Nev. Feb. 12, 2015); 31 U.S.C. § 3730(b)(1);
Stoner v. Santa Clara Cnty. Office of Educ., 502
F.3d 1116, 1127 (9th Cir. 2007).
FERA contained amendments to the False Claims Act, and the
False Claims Act in turn permits civil actions by private
persons for violations of 31 U.S.C. § 3729. See 31
U.S.C. § 3730(b). By law, such actions can be brought
only “in the name of the Government, ”
Id. § 3730(b)(1), and the initiation of such a
suit must begin with certain specific procedures: “A
copy of the complaint and written disclosure of substantially
all material evidence and information the person possesses
shall be served on the Government pursuant to Rule 4[(i)] of
the Federal Rules of Civil Procedure. The complaint shall be
filed in camera, shall remain under seal for at least 60
days, and shall not be served on the defendant until the
court so orders, ” id. § 3730(b)(2).
Under this statute, private persons who attempt to initiate
such a suit are not actually plaintiffs but rather are deemed
“relators, ” and “[b]ecause relators lack a
personal interest in False Claims Act qui tam
actions, [the Second Circuit has] conclude[d] that they are
not entitled to proceed pro se.” United
States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89,
93 (2d Cir.2008).
Ruotolo v. Fannie Mae, 933 F.Supp.2d 512, 522
plaintiff proceeding in pro se has met none of these
requirements. Plaintiff will, however, be permitted leave to
amend to state a claim under some other theory, if she is
able to do so in good faith.
a FERA claim, the court can discern no other basis for
federal subject matter jurisdiction. A federal court is a
court of limited jurisdiction, and may adjudicate only those
cases authorized by the Constitution and by Congress. See
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377,
114 S.Ct. 1673, 1675 (1994). U.S. Const. Art. III, § 1
provides that the judicial power of the United States is
vested in the Supreme Court, “and in such inferior
Courts as the Congress may from time to time ordain and
establish.” Congress therefore confers jurisdiction
upon federal district courts, as limited by U.S. Const. Art.
III, § 2. See Ankenbrandt v. Richards, 504 U.S.
689, 697-99, 112 S.Ct. 2206, 2212 (1992). Lack of subject
matter jurisdiction may be raised at any time by either party
or by the court. See Attorneys Trust v. Videotape
Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir.
basic federal jurisdiction statutes, 28 U.S.C. §§
1331 & 1332, confer “federal question” and
“diversity” jurisdiction, respectively. Statutes
which regulate specific subject matter may also confer
federal jurisdiction. See generally, W.W. Schwarzer,
A.W. Tashima & J. Wagstaffe, Federal Civil Procedure
Before Trial § 2:5. Unless a complaint presents a
plausible assertion of a substantial federal right, a federal
court does not have jurisdiction. See Bell v. Hood,
327 U.S. 678, 682, 66 S.Ct. 773, 776 (1945). A federal claim
which is so insubstantial as to ...