United States District Court, S.D. California
BRETT M. SCHUTTE, Plaintiff,
NUCOR CORPORATION, et al., Defendants.
ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS; ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL;
AND ORDER SCREENING AND DISMISSING COMPLAINT
Larry Alan Burns Chief United States District Judge.
Brett Schutte, pro se, filed a complaint along with
a motion for leave to proceed in forma pauperis
(“IFP”) and a motion for appointment of counsel.
The IFP motion is GRANTED.
asks the Court to appoint counsel for him. Plaintiffs in
civil cases have no right to appointment of counsel. Under
exceptional circumstances, the Court may request counsel to
represent indigent civil litigants. See Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citing 28
U.S.C. § 1915(e)(1)). In deciding whether this is such a
case, the Court must consider “the likelihood of
success on the merits as well as the ability of the
petitioner to articulate his claims pro se in light of the
complexity of the legal issues involved.” Id.
(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th
does not appear to be an exceptional case, however.
Schutte's motion shows that he contacted three large law
firms, two of whom said they had a conflict of interest and
one of whom asked him for a retainer, which he could not
provide. He is bringing claims based on a business dispute,
and contacted only firms unlikely to be able to represent him
because of the large number of Defendants he is suing,
including the boards of regents of two public universities.
The firms he contacted are also unlikely to accept his case
on a contingency basis. He apparently did not contact any
low-cost legal providers, legal aid agencies, or small law
practices that might be willing to take his case on
contingency. Schutte appears reasonably able to articulate
his claims. But for reasons discussed below, it does not
appear likely he can succeed on the merits in this Court. The
motion to appoint counsel is DENIED WITHOUT
28 U.S.C. § 1915(e)(2), the Court must screen the
complaint of any plaintiff proceeding IFP, and dismiss it to
the extent it fails to state a claim or seeks money damages
against an immune defendant. See Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Because
Schutte is proceeding pro se, the Court construes
the complaint liberally. See Karim-Panahi v. Los Angeles
Police Dep't , 839 F.2d 621, 623 (9th Cir. 1988).
But the Court will not supply facts he has not pled. See
Ivey v. Board of Regents of the Univ. of Alaska, 673
F.2d 266, 268 (9th Cir. 1982). When conducting the mandatory
screening under 28 U.S.C. § 1915(e)(2), the Court uses
the standard applicable to motions under to Fed.R.Civ.P.
12(b)(6). Huftile v. Miccio-Fonseca, 410 F.3d 1136,
1138 (9th Cir. 2005). The Court is required to raise the
issue of jurisdiction sua sponte. Mt. Healthy City Sch.
Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 278 (1977).
complaint identifies a business dispute based on unfair
competition of some kind. He alleges he brought a business
idea to several of the Defendants, who met with him in San
Diego. Then, he alleges, without his consent these Defendants
began dealing with his contacts behind his back and began
doing business with them. This might or might not amount to
theft or improper use of trade secrets, depending on whether
the information Defendants used amounted to a trade secret.
It might amount to some kind of breach of contract. Or it
might amount to unfair competition. But whatever the nature
of Schutte's claim, he has not explained why this Court
would have jurisdiction over it, nor alleged facts that would
reasonably show the Court has jurisdiction. See Fed.
R. Civ. P. 8(a)(1) (requiring that a complaint contain a
short and plain statement of the basis for the Court's
the most common bases for federal jurisdiction, federal
question and diversity, do not appear on the face of the
complaint. It is not clear what law Schutte's claims are
based on, but they could arise entirely under California or
other state law. Furthermore, the allegations do not allege
the citizenship of Schutte or any of the
Defendants. See Bautista v. Pan American World
Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987) (to
establish diversity jurisdiction under 28 U.S.C. § 1332,
a plaintiff must specifically allege the diverse citizenship
of all parties, and that the matter in controversy exceeds
in mind that two of the defendants are the boards of regents
of public universities, they do not appear to be diverse.
See Moor v. Cnty. of Alameda, 411 U.S. 693, 717
(1973) (holding that an arm of a state is not a
“citizen” for diversity purposes); Humenansky
v. Regents of Univ. Minn., 152 F.3d 822, 824
(8th Cir. 1998) (holding that University of
Minnesota was an instrumentality of the state); Ronwin v.
Shapiro, 657 F.2d 1071, 1073 (9th Cir. 1981)
(holding that University of Arizona's board of regents
was not a citizen for purposes of diversity jurisdiction
under 28 U.S.C. § 1332).
boards of regents of state universities are likely to be
immune from suit for money damages under the Eleventh
Amendment. Humanensky al 823
(treating board of regents as entitled to Eleventh Amendment
immunity to the same extent as the university and state);
Ronwin at 1073-74 (holding that University of
Arizona's board of regents enjoyed Eleventh Amendment
complaint is DISMISSED WITHOUT PREJUDICE for
failure to invoke the Court's jurisdiction. If Schutte
believes he can successfully amend his complaint to show that
the Court has jurisdiction, he may do so no later than
July 25, 2019. His amended
complaint must comply with Fed.R.Civ.P. 8, and must be
received and docketed by the due date, not merely mailed or
postmarked. If he files an amended complaint by that date, it
must clearly show why the Court has jurisdiction over his
claims. Otherwise, this action will be dismissed without
prejudice to its being refiled in a court that does have
IS SO ORDERED.
 Although the caption names only NuCor
Corporation and two boards of regents as Defendants, the body
of the complaint identifies several ...