1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 ALMAZ ASMELASHE, et al., Case No. 21-cv-03015-LB

12 Plaintiffs, ORDER DENYING IN FORMA 13 v. PAUPERIS APPLICATION WITHOUT PREJUDICE AND SCREENING 14 DAWIT AUTO BODY SHOP, COMPLAINT 15 Defendant. Re: ECF No. 1 16 17 INTRODUCTION 18 The plaintiffs Almaz Asmelashe and Beraki Eskinder, who represent themselves, sued Dawit 19 Auto Body Shop, the lienholder of Ms. Asmelashe’s car, who allegedly sold the car even though 20 he took their money to buy back the car.1 Ms. Asmelashe filed an application to proceed in forma 21 pauperis under

Mr. Eskinder — Ms. Asmelashe’s husband — did not fill out 22 an in forma pauperis application himself, and he must in order for the court to consider the 23 application. The court thus denies the application without prejudice to renewing it by submitting 24 an application from Mr. Eskinder. Also, for the court to have jurisdiction (because all parties are 25 citizens of California), there must be a federal claim, and the plaintiffs have alleged only a state- 26 27 1 Compl. – ECF No. 1 at 2–5. Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 law claim for conversion of their car. The court thus does not have subject-matter jurisdiction. The 2 court gives the plaintiffs until June 1, 2021 to amend the complaint to correct these deficiencies if 3 they can and to submit separate applications to proceed in forma pauperis. 4 5 STATEMENT 6 Construed liberally, the complaint alleges the following. 7 The defendant is the lienholder of Ms. Asmelashe’s car. On April 29, 2018, Ms. Asmelashe 8 negotiated with Mr. Dawit to buy back her car. They agreed that Ms. Asmelashe would pay the 9 him $600 and then — when she obtained a second job — she would pay $600 every month until 10 the debt ($6,500) was paid. They also agreed that she could drive the car if she made the monthly 11 $600 payments. Ms. Asmelashe paid the first $600. Two weeks later, when Ms. Asmelashe got a 12 second job, she tried to pay Mr. Dawit another $600. He told her that he sold the car and used the 13 first payment to store the car. Allegedly, he did not store the car and instead parked it on the street, 14 where the car collected multiple parking tickets.3 15 About two years later, Ms. Asmelashe hired someone named Ernesto Treviller to investigate 16 whether Mr. Dawit actually sold the car and learned that he still had it. Between April and May 17 2020, Ms. Asmelashe — through Mr. Treviller — and Mr. Dawit negotiated another buy-back of 18 the car. On May 20, 2020, Mr. Dawit agreed to a price of $4,500. A few days later, when Mr. 19 Treviller contacted Mr. Dawit to make Ms. Asmelashe’s payment, Mr. Dawit said that he sold the 20 car to someone else.4 21 22 ANALYSIS 23 1.

(e)(2) 24 “Under

, a district court may authorize the commencement of a civil action [in 25 forma pauperis] if it is satisfied that the plaintiff cannot pay the filing fees necessary to pursue the 26

27 3 Compl. – ECF No. 1 at 2. 1 action.” La Douer v. U.C.S.F., No. 15-cv-02214-MEJ,

, at *2 (N.D. Cal. July 15, 2 2015) (citing

(a)(1)). To be eligible, “an applicant must submit an affidavit that 3 includes a statement of all assets showing that the applicant is unable to pay such fees or give security 4 therefor.”

(quoting

(a)(1)) (cleaned up). 5 In addition, a complaint filed by any person proceeding in forma pauperis under

1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent that 7 it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary 8 relief from a defendant who is immune from such relief.

(e)(2)(B); Calhoun v. 9 Stahl,

(9th Cir. 2001); Lopez v. Smith,

, 1126–27 (9th Cir. 2000) 10 (en banc). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint 11 make and rule on its own motion to dismiss before directing the United States Marshals to serve the 12 complaint under Federal Rule of Civil Procedure 4(c)(2). Lopez,

. The Ninth 13 Circuit has noted that “[t]he language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule 14 of Civil Procedure 12(b)(6).” Barren v. Harrington,

(9th Cir. 1998). The in 15 forma pauperis statute “is designed largely to discourage the filing of, and waste of judicial and 16 private resources upon, baseless lawsuits that paying litigants generally do not initiate because of 17 the costs of bringing suit.” Neitzke v. Williams,

(1989). 18 Under Rule 12(b)(6) and

(e)(2)(B), a district court must dismiss a complaint if 19 it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint 20 include a “short and plain statement” showing the plaintiff is entitled to relief. “To survive a motion 21 to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to 22 relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (internal quotation 23 marks omitted); see Bell Atl. Corp. v. Twombly,

(2007). The complaint need not 24 contain “detailed factual allegations,” but the plaintiff must “provide the grounds of his entitlement 25 to relief,” which “requires more than labels and conclusions”; a mere “formulaic recitation of the 26 elements of a cause of action” is insufficient. Twombly,

(cleaned up). 27 In determining whether to dismiss a complaint under Rule 12(b)(6), the court is ordinarily 1 (9th Cir. 2002). Factual allegations in the complaint must be taken as true and reasonable 2 inferences drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. 3 Co.,

, 337–38 (9th Cir. 1996). The court cannot assume, however, that “the [plaintiff] 4 can prove facts that [he or she] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State 5 Council of Carpenters,

(1983). “Nor is the court required to accept as true 6 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 7 inferences.” Sprewell v. Golden State Warriors,

(9th Cir. 2001). 8 Federal courts must construe pro se complaints liberally. Hughes v. Rowe,

, 9 9 (1980); Hearns v. Terhune,

(9th Cir. 2005). A pro se plaintiff need only 10 provide defendants with fair notice of his claims and the grounds upon which they rest. Hearns, 11

. He need not plead specific legal theories so long as sufficient factual averments 12 show that he may be entitled to some relief.

. 13 When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held that 14 a district court should grant leave to amend even if no request to amend the pleading was made, 15 unless it determines that the pleading could not possibly be cured by the allegation of other facts.” 16 Lopez,

(internal quotation marks omitted). 17 18 2. Analysis 19 The court denies the application to proceed in forma pauperis without prejudice and identifies 20 the complaint’s deficiencies. 21 First, the plaintiffs submitted Ms. Asmelashe’s application. Both plaintiffs must submit an 22 application and an accompanying financial affidavit. La Douer,

, at *2. The 23 court denies the application without prejudice to both plaintiffs’ submitting affidavits or filing the 24 civil filing fee of $405. Cf. Wade v. Am. Fed’n of Gov’t Emp., No. C 06-4751-MEJ,

3645610, at *1–2 (N.D. Cal. Dec. 12, 2006) (denying in forma pauperis application where the 26 plaintiff’s “income minus necessities expenses and debt payments leaves a balance of 27 approximately $655 a month”). 1 Second, the court apparently does not have federal-question jurisdiction. “Federal courts are 2 courts of limited jurisdiction.” Kokkonen v. Guar. Life Ins. Co. of Am.,

(1994). 3 They “have an independent obligation to ensure that they do not exceed the scope of their 4 jurisdiction.” Henderson ex rel. Henderson v. Shinseki,

(2011). There are two 5 || ways to establish the court’s jurisdiction: federal-question jurisdiction and diversity jurisdiction. 6 Caterpillar Inc. v. Williams,

(1987). There is federal-question jurisdiction if the 7 case “aris[es] under the Constitution, laws, or treaties of the United States.”

. For 8 diversity jurisdiction, the opposing parties must be citizens of different states, and the amount in 9 controversy must exceed $75,000.

(a). At best, the plaintiffs appear to be alleging 10 conversion of the car, which is a state-law claim that can be brought in a civil lawsuit in state court. 11 There is no equivalent federal claim.

. There apparently is no diversity jurisdiction 12 || either: the plaintiffs’ civil cover sheet shows that all parties are citizens of California.°

CONCLUSION 3 15 The court has identified the deficiencies in the plaintiffs’ in forma pauperis application and 16 || complaint. If the plaintiffs are able to address the deficiencies, by June 1, 2021, they may file an 3 17 amended complaint and separate applications to proceed in forma pauperis. Alternatively, they 18 || may file a one-page dismissal of their federal case, which will operate as a dismissal without 19 || prejudice and allow them to pursue any state-law claims in state court. If the plaintiffs do not file 20 an amended complaint or a dismissal by June 1, 2021, the court will reassign the case to a district 21 || judge and recommend that the newly assigned judge dismiss the case. 22 IT IS SO ORDERED. 23 Dated: May 10, 2021 LAE 24 LAUREL BEELER 25 United States Magistrate Judge 26 27 28 || > Civil Cover Sheet — ECF No. 1-1 at 1.