1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RANDI QUINTELL, Case No. 22-cv-09158-WHO Plaintiff, 8 ORDER RE REPORT AND 9 v. RECOMMENDATION 10 DANIEL TOMKO, Re: Dkt. No. 7 Defendant. 11 12 On February 10, 2023, Magistrate Judge Joseph C. Spero issued a Report and 13 Recommendation, recommending that this pro se case be dismissed as the court lacks diversity or 14 subject matter jurisdiction over plaintiff’s allegations that plaintiff’s property and belongings have 15 been stolen. Dkt. No. 7. Prior to issuing the Report and Recommendation, Judge Spero issued an 16 Order to Show Cause explaining why plaintiff had not alleged facts or claims establishing 17 jurisdiction in this Court and providing plaintiff an opportunity to file an Amended Complaint. 18 Dkt. No. 6. 19 Plaintiff did not respond to the Order to Show Cause. Objections to the Report and 20 Recommendation were due by February 24, 2023. On March 2, 2023, plaintiff filed a “Request 21 for reconsideration/appeal.” Dkt. No. 10. In that document, plaintiff explains that circumstances 22 in her life have made it hard for her to keep her various legal cases straight and to respond in a 23 timely manner. Dkt. No. 10. 24 In light of plaintiff’s March 2, 2023, response I will not adopt Judge Spero’s Report and 25 Recommendation at this time. However, plaintiff is still required to address the issues identified 26 in Judge Spero’s Order to Show Cause (Dkt. No. 6, attached here) and to file an Amended 27 Complaint identifying federal claims and supporting facts that would confer jurisdiction on this 1 those losses occurred, and what actions defendant Tomko took with respect to that property. She 2 || must also explain why she believes her case belongs in federal court, for example because she and 3 Tomko reside in different states and the value of her claims is in excess of $75,000 or because she 4 || is alleging violation of a specifically identified federal law). 5 Plaintiff must file her Amended Complaint on or before April 17, 2023. If plaintiff 6 || does not file an Amended Complaint before that time, I will proceed to adopt Judge Spero’s 7 || Report and Recommendation and this case will be dismissed for lack of subject matter 8 || jurisdiction. 9 10 IT IS SO ORDERED. 11 Dated: March 16, 2023 a 12 .

13 illiam H. Orrick 14 United States District Judge 15 16

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 RANDI QUINTELL, 7 Case No. 22-cv-09158-JCS Plaintiff, 8 v. ORDER TO SHOW CAUSE RE 9 DISMISSAL UNDER

DANIEL TOMKO, [CORRECTED]1 10 Defendant. 11 12 13 I. INTRODUCTION 14 Plaintiff Randi Quintell, pro se, applied to proceed in forma pauperis and the Court granted 15 her application. See Docket No. 4. The Court now reviews the sufficiency of Plaintiff’s 16 complaint to determine whether it satisfies

(e)(2)(B). Because the complaint 17 does not allege facts establishing federal jurisdiction or plausibly state a claim, Plaintiff is 18 ORDERED TO SHOW CAUSE why the complaint should not be dismissed. Plaintiff may file 19 either an amended complaint or a response to this order addressing the basis for federal 20 jurisdiction and why her complaint is sufficient, no later than February 8, 2023. The Case 21 Management Conference set for March 31, 2023 is vacated. 22 II. THE COMPLAINT2 23 Plaintiff has filed a form complaint against Defendant Daniel Temko, listing two addresses 24 25 1 This Order to Show Cause is identical to Dkt. 5 except for the correction of the date for Plaintiff to respond in the Introduction, which erroneously stated that Plaintiff’s response was due on 26 February 8, 2022 instead of February 8, 2023. 2 Because the factual allegations of a plaintiff’s complaint are generally taken as true in the context 27 of determining whether the complaint states a claim, this section summarizes Plaintiff’s 1 for Defendant – one in Oakland, California and another in San Leandro, California. She also 2 describes Defendant as a citizen of “California/Pennsylvania” and “All foreign/galactic.” She has 3 checked the box for “federal question” jurisdiction. In the Statement of Claim section, she has 4 written: “● See Attachments ● All Entiritys [sic] ● Before Any others pass away without giving 5 me my propertys [sic] and assets as 9 others have left.” The attachments are a series of 6 documents, including what appear to be statements and communications by Plaintiff, relating to 7 claims that Plaintiff’s property and belongings have been stolen. Although there is no clear 8 statement of facts, the attachments suggest that Plaintiff’s claims relate to a dispute involving the 9 inheritance of a home in San Leandro, California and Plaintiff’s alleged ownership of the home 10 and the personal property in it. 11 III. ANALYSIS 12 A. Legal Standards Under

and Rule 12(b)(6) 13 Where a plaintiff is found to be indigent under

(a)(1) and is granted leave 14 to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: 15 (1)are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek 16 monetary relief from a defendant who is immune from such relief.

(e)(2)(B); see 17 Marks v. Solcum,

(9th Cir. 1996). 18 To state a claim for relief, a plaintiff must make “a short and plain statement of the claim 19 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Further, a claim may be 20 dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6); 21 see also Diaz v. Int’l Longshore and Warehouse Union, Local 13,

(9th Cir. 22 2007). In determining whether a plaintiff fails to state a claim, the court takes “all allegations of 23 material fact in the complaint as true and construe[s] them in the light most favorable to the non- 24 moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S.,

, 975 25 (9th Cir. 2007). However, “the tenet that a court must accept a complaint’s allegations as true is 26 inapplicable to legal conclusions [and] mere conclusory statements,” Ashcroft v. Iqbal,

(2009) (citing Bell Atl. Corp. v. Twombly,

(2007)), and courts “do not 1 factual allegations.” Coto Settlement v. Eisenberg,

(9th Cir. 2010) (internal 2 quotation marks omitted). The complaint need not contain “detailed factual allegations,” but must 3 allege facts sufficient to “state a claim to relief that is plausible on its face.”

at 678 (citing 4 Twombly,

). 5 Where the complaint has been filed by a pro se plaintiff, courts must “construe the 6 pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler,

338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint 8 unless it is absolutely clear that the deficiencies in the complaint could not be cured by 9 amendment.” Noll v. Carlson,

(9th Cir. 1987), superseded on other grounds 10 by statute, as recognized in Lopez v. Smith,

(9th Cir. 2000) (en banc). Further, 11 when it dismisses the complaint of a pro se litigant with leave to amend, “the district court must 12 provide the litigant with notice of the deficiencies in his complaint in order to ensure that the 13 litigant uses the opportunity to amend effectively.”

(quoting Ferdik v. Bonzelet,

(9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant 15 will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep’t,

(9th 16 Cir. 1988) (quoting Noll v. Carlson,

(9th Cir. 1987)). 17 B. Discussion 18 As a preliminary matter, the Court must address whether there is federal jurisdiction over 19 Plaintiff’s complaint. See B.C. v. Plumas Unified Sch. Dist.,

, 1264 (9th Cir. 1999). 20 Federal courts have limited subject matter jurisdiction and may only hear cases falling within their 21 jurisdiction. The two most common forms of federal subject matter jurisdiction are federal 22 question jurisdiction under

and diversity jurisdiction under

. 23 Diversity jurisdiction exists where all plaintiffs are citizens of different states from all defendants 24 and at least $75,000 is in controversy. Here, Plaintiff alleges that there is federal question 25 jurisdiction, but she has not cited any violation of a federal statute or of the United States 26 Constitution in her Complaint. It also does not appear that Plaintiff can establish diversity 27 jurisdiction as both Plaintiff and Defendant appear to reside in California. 1 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). As a result, the Court cannot determine 2 whether she has a plausible claim against Defendant under Rule 12(b)(6). 3 IV. CONCLUSION 4 For the reasons discussed above, Plaintiff is ORDERED TO SHOW CAUSE why this case 5 should not be dismissed on the basis that there is no federal jurisdiction and/or that she has failed 6 to state a claim. Plaintiff may respond by filing either an amended complaint that addresses the 7 deficiencies discussed above or a response that addresses why her current complaint is sufficient. 8 Plaintiff’s response shall be filed by February 8, 2023. If Plaintiff does not file a response by 9 that date, the case will be reassigned to a United States district judge with a recommendation that 10 it be dismissed pursuant to

(e)(2)(B). 11 Any amended complaint must include the caption and civil case number used in this order 12 (22-cv-9158) and the words FIRST AMENDED COMPLAINT on the first page. Because an 13 amended complaint completely replaces the previous complaint, any amended complaint may not 14 incorporate claims or allegations of Plaintiff’s original complaint by reference, but instead must 15 include all of the facts and claims Plaintiff wishes to present and all of the defendants he wishes to 16 sue. 17 Plaintiff, who is not represented by counsel, is encouraged to consult with the Federal Pro 18 Bono Project’s Legal Help Center in either of the Oakland or San Francisco federal courthouses 19 for assistance. The San Francisco Legal Help Center office is located in Room 2796 on the 15th 20 floor at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is located in 21 Room 470 S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments can be made 22 by calling (415) 782-8982 or emailing [email protected]. Lawyers at the Legal 23 Help Center can provide basic assistance to parties representing themselves but cannot provide 24 legal representation. 25 IT IS SO ORDERED. 26 Dated: January 4, 2023 27 ______________________________________ por

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