Madden v. Molasky Cporate Center

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * GERMANI MARIE MADDEN, Case No. 2:23-cv-00306-ART-EJY 5 Plaintiff, ORDER and 6 v. REPORT AND RECOMMENDATION Re: ECF Nos. 1, 1-1 MOLASKY CPORATE CENTER C/O ANNA JUAREZ, Defendant.

10 Pending before the Court is Plaintiff’s in forma pauperis application and civil Complaint ECF Nos. 1, 1-1. Because the Court recommends dismissal of Plaintiff’s Complaint, the Court denies as moot Plaintiff’s in forma pauperis application.

13 I. SCREENING THE COMPLAINT 14 Upon granting a request to proceed in forma pauperis, a court must screen the complaint under 28 U.S.C. § 1915(e)(2). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 18 1915A(b)(1), (2). However, pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

20 A federal court must dismiss a plaintiff’s claim if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). The standard for dismissing a complaint for failure to state a claim is established by Federal Rule of Civil Procedure 12(b)(6). The court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions to cure its deficiencies unless it is clear from the face of the complaint that the deficiencies cannot be cured by amendment. Cato v. United States, 70 F.3d 1103, 1 Review under Rule 12(b)(6) is essentially a ruling on a question of law. Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). In making this determination, the court treats all material factual allegations as true and construes these facts in the light most favorable to the non-moving party. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must plead more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

7 A formulaic recitation of the elements of a cause of action is insufficient. Id. 8 Finally, all or part of a complaint may be dismissed sua sponte if the plaintiff’s claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 12 795, 798 (9th Cir. 1991).

13 II. DISCUSSION 14 A. Plaintiff Fails to Establish Federal Court Jurisdiction.

15 Plaintiff does not establish that this matter is properly before a federal court. Federal courts may sua sponte review whether a case establishes subject-matter jurisdiction and dismiss a case when subject matter jurisdiction is lacking. Fed. R. Civ. P. 12(h)(3). Subject matter jurisdiction is established in two ways. Federal district courts “have original jurisdiction”—referred to as federal question jurisdiction—when the matter in controversy arises “under the Constitution, laws, or treaties of the United States.”1 The federal court has diversity jurisdiction when cases “where the matter in controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of different States.”2 The party filing a case in or removing a case to federal court has the burden of establishing the court may properly exercise jurisdiction. McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001), citing McNutt v. General Motors Acceptance Corp., 298 U.S. 25 178, 189 (1936)).

1 Plaintiff asserts that he presents a “Federal question.” ECF No. 1-1 at 3. However, the facts alleged indicate Plaintiff accuses the Molasky Corporate Center of defamation and intentional infliction of emotional distress, which are torts arising under state law. Melton v. Lawson, Case No. 3:23-CV-00020-MMD-CLB, 2023 WL 1822638, at *3 (D. Nev. Jan. 20, 2023) (“[C]laims for defamation … are governed by state law.”) (citation omitted); O’Brien v. Wynn Las Vegas, LLC, Case No. 2:17-cv-02801-JAD-DJA, 2020 WL 42790, at *1 (D. Nev. Jan. 3, 2020) (dismissing plaintiff’s claim for intentional infliction of emotional distress due to the failure to satisfy federal jurisdiction). Hence, Plaintiff fails to establish federal question jurisdiction under 28 U.S.C. § 1331 as there are no allegations made of the Molasky Corporate Center violating any federal law. Plaintiff also fails to assert diversity jurisdiction under 28 U.S.C. § 1332(a) because Plaintiff and Defendant are Nevada residents. ECF No. 1-1 at 1.

12 B. Plaintiff Fails to State a Claim Upon Which Relief May be Granted.

13 The Court further notes that Plaintiff fails to state a claim upon which relief may be granted.

14 Plaintiff’s Complaint is devoid of facts the Court may review to determine whether Plaintiff states cognizable claims. The allegations against the Molasky Corporate Center, a building in downtown Las Vegas, appear to allege two state law claims—defamation and intentional infliction of emotional distress. ECF No. 1-1 at 4. Plaintiff asserts that the Molasky Corporate Center (1) said Plaintiff was trespassing, (2) stopped her from making an appointment, (3) called the police unnecessarily, and (4) created an opportunity for Plaintiff’s abusive counterpart to access Plaintiff’s private information.

20 Id. Plaintiff contends these actions caused her economic losses, emotional anguish, loss of enjoyment of life, anxiety, impairment to her standing in the community, humiliation, shame, and disgrace. Id. 23 Rule 8 of the Federal Rules of Civil Procedure requires Plaintiff plead sufficient facts to give Defendant fair notice of the legally cognizable claims asserted and the factual grounds upon which those claims rest. Dismissal is proper when there is either a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri, 901 F.2d at 699.

27 “[A] pleading may not simply allege a wrong has been committed and demand relief.” Sherrell v. |} Dec. 22, 2011). Plaintiff's Complaint does not contain factual allegations that, when liberal || construed, support a cognizable cause of action. The vague references to an event that may ha‘ || occurred on Molasky Corporate Center’s premises involving law enforcement are insufficient || establish the elements of either defamation or intentional infliction of emotional distress. ECF N || 1-l In sum, Plaintiff fails to state sufficient facts that would “nudge ... [her] claims across t] || line from conceivable to plausible....” Twombly, 550 U.S. at 570.

7 C. The Case Before the Court Duplicates a Previously Dismissed Case.

8 The Court finds Plaintiff previously filed suit in the District of Nevada against the □□□□□□ || Corporate Center alleging the identical facts, word-for-word, in her initial and amended complaint || Case No. 2:22-cv-01227-JAD-DJA, ECF Nos. 1-1, 7. The Court dismissed that case finding Plainti || failed to state a viable claim. Jd., ECF No. 10.

12 District courts are empowered to dismiss a civil complaint “that merely repeats pending | || previously litigated claims.” Cato, 70 F.3d at 1105 n.2, citing Bailey v. Johnson, 846 F.2d 101 14 1021 (Sth Cir. 1988); see also Denton v. Hernandez, 504 U.S. 25, 30, (1992) (discussing the need || prevent the filing by non-paying litigants of frivolous and repetitive lawsuits). Because Plaintiff || instant Complaint is identical to a previously dismissed case, the Court finds this is an independe || basis to dismiss this case without leave to amend.

18 || TT. ORDER 19 IT IS HEREBY ORDERED that Plaintiff's Application for Leave to Proceed in forn || pauperis (ECF No. 1) is DENIED as moot.

21 |} IV. RECOMMENDATION 22 IT IS HEREBY RECOMMENDED that Plaintiff’s Complaint (ECF No. 1-1) be dismiss: || with prejudice.

24 DATED this 4th day of April, 2023.

27 FLAYNG 1. Ske 38 UNITEDSTATESMA RATE JUDGE 1 NOTICE 2 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).