Sheaf v. Ninja Trader Group, LLC

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 24cv1754 DMS (DDL) ADAM SHEAF, 11 Plaintiff, ORDER (1) GRANTING 12 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS 13 NINJA TRADER GROUP, LLC AND (2) DISMISSING COMPLAINT 14 Defendant. WITHOUT PREJUDICE FOR 15 FAILING TO STATE A CLAIM UPON WHICH RELIEF CAN BE 16 GRANTED PURSUANT TO 28 U.S.C. § 1915 (e)(2)(B)(ii) [17] 18 Plaintiff, a non-prisoner proceeding pro se, has submitted a Complaint along with a 19 request to proceed In Forma Pauperis. 20 Motion to Proceed IFP 21 All parties instituting any civil action, suit or proceeding in a district court of the 22 United States, except an application for writ of habeas corpus, must pay a filing fee of 23 $400. See 28 U.S.C. § 1914 (a). An action may proceed despite a plaintiff’s failure to 24 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 25 U.S.C. § 1915 (a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). This Court 26 finds Plaintiff’s affidavit of assets is sufficient to show he is unable to pay the fees or post 27 securities required to maintain this action. See Civil Local Rule 3.2(d). Accordingly, the 28 Court GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915 (a). 1 Sua Sponte Screening per 28 U.S.C. § 1915 (e)(2) 2 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 3 any person proceeding IFP pursuant to 28 U.S.C. § 1915 (a) is subject to a mandatory and 4 sua sponte review and dismissal by the court to the extent it is frivolous, malicious, fails to 5 state a claim upon which relief may be granted, or seeks monetary relief from a defendant 6 immune from such relief. 28 U.S.C. § 1915 (e)(2)(B); Calhoun v. Stahl, 254 F.3d 845 , 845 7 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915 (e)(2)(B) are not limited to 8 prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Prior to 9 its amendment by the Prison Litigation Reform Act, the former 28 U.S.C. § 1915 (d) 10 permitted sua sponte dismissal of only frivolous and malicious claims. Id. at 1130 . The 11 newly enacted 28 U.S.C. § 1915 (e)(2), however, mandates that the court reviewing a 12 complaint filed pursuant to the IFP provisions of section 1915 make and rule on its own 13 motion to dismiss before directing that the complaint be served by the U.S. Marshal 14 pursuant to Fed. R. Civ. P. 4(c)(2). Lopez, 203 F.3d 1127 (“[S]ection 1915(e) not only 15 permits, but requires a district court to dismiss an in forma pauperis complaint that fails to 16 state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting 17 the “the language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil 18 Procedure 12(b)(6).”). 19 Here, Plaintiff filed a form “Complaint For A Civil Case Alleging Negligence” 20 against Defendant Ninja Trader Group, LLC. In the Complaint, Plaintiff alleges Defendant 21 was negligent because it failed to close Plaintiff’s futures trading account despite his 22 repeated requests that it do so. (Compl. at 4.) As a result of Defendant’s failure to close 23 Plaintiff’s account, Plaintiff alleges that he lost his life savings of $42,769.82 and was 24 forced to file for bankruptcy. (Id.) 25 “Under California law, a claim for negligence requires a plaintiff to allege duty, 26 breach of duty, causation, and damages.” Moyer v. J.P. Morgan Chase Bank, N.A., No. 27 5:23-cv-00998-ODW (SHKx), 2024 WL 4003168 , at *4 (C.D. Cal. May 3, 2024) (citing 28 Peredia v. HR Mobile Servs. Inc., 25 Cal. App. 5th 680, 687 (2018)). Here, Plaintiff fails 1 || to allege Defendant owed him any duty whatsoever, much less a duty to close his accounts 2 upon request. Absent that allegation and any facts or law to support the existence of a duty 3 under the facts alleged, Plaintiff's Complaint is subject to dismissal for failure to state a 4 |\claim for relief under 28 U.S.C. § 1915 (e)(2)(B)Gi). See Wescott v. Google, LLC, No. 245 ||cv-01513-PHK, 2024 WL 3849345 , at *2-4 (N.D. Cal. Aug. 15, 2024) (dismissing 6 || plaintiff's negligence-based complaint under 28 U.S.C. § 1915 (e)(2)(B)Gi)). 7 || Conclusion and Order 8 For these reasons, IT IS HEREBY ORDERED that Plaintiff's Motion to Proceed 9 || IFP is GRANTED and the Complaint is DISMISSED without prejudice for failure to state 10 || a claim.' 11 IT IS SO ORDERED. 12 || Dated: February 27, 2025 g □ 13 a Yn. Hon. Dana M. Sabraw United States District Judge [26] |. 2g ||' In light of this ruling, Plaintiff's request for appointment of counsel is denied as moot.