Fernando Suarez Negrete v. David Killinger

[8] 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA [11] 12 FERNANDO SUAREZ NEGRETE, Case No. 1:25-cv-01160-JLT-SKO 13 Plaintiff, FIRST SCREENING ORDER 14 v. ORDER FOR PLAINTIFF TO: 15 DAVID KILLINGER, (1) FILE A FIRST AMENDED COMPLAINT; 16 Defendant. (2) NOTIFY THE COURT THAT HE WISHES TO STAND ON HIS 17 COMPLAINT; OR 18 (3) FILE A NOTICE OF VOLUNTARY DISMISSAL [19] (Doc. 1) [20] THIRTY-DAY DEADLINE [22] 23 Plaintiff Fernando Suarez Negrete is proceeding pro se and in forma pauperis in this action. 24 Upon review, the Court concludes that the complaint fails to state any cognizable claims. 25 Plaintiff has the following options as to how to proceed. Plaintiff may file an amended 26 complaint, which the Court will screen in due course. Alternatively, Plaintiff may file a statement 27 with the Court stating that he wants to stand on this complaint and have it reviewed by the assigned 28 district judge, in which case the Court will issue findings and recommendations to the district judge 1 consistent with this order. Lastly, Plaintiff may file a notice of voluntary dismissal. If Plaintiff 2 does not file anything, the Court will recommend that the case be dismissed. 3 I. SCREENING REQUIREMENT 4 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 5 each case and shall dismiss the case at any time if the Court determines that the allegation of poverty 6 is untrue, or that the action or appeal is frivolous or malicious, fails to state a claim upon which 7 relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. [8] 28 U.S.C. § 1915 (e)(2). See also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required 9 of in forma pauperis proceedings which seek monetary relief from immune defendants); Cato v. 10 United States, 70 F.3d 1103 , 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma 11 pauperis complaint under 28 U.S.C. § 1915 (e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 12 1998) (affirming sua sponte dismissal for failure to state a claim). If the Court determines that a 13 complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies 14 of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122 , 1130 (9th Cir. 2000) 15 (en banc). 16 In determining whether a complaint fails to state a claim, the Court uses the same pleading 17 standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and 18 plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 19 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of 20 a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 21 U.S. 662 , 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). . A 22 complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack 23 of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri 24 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff must allege a minimum factual 25 and legal basis for each claim that is sufficient to give each defendant fair notice of what the 26 plaintiff’s claims are and the grounds upon which they rest. See, e.g., Brazil v. U.S. Dep’t of the 27 Navy, 66 F.3d 193 , 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 28 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept 1 as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89 , 94 2 (2007). Although a court must accept as true all factual allegations contained in a complaint, a 3 court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint 4 [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the 5 line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. 6 at 557 ). 7 II. SUMMARY OF PLAINTIFF’S COMPLAINT 8 Plaintiff prepared his complaint on a form titled “Complaint for a Civil Case Alleging 9 Breach of Contract ( 28 U.S.C. § 1332 ; Diversity of Citizenship).” (Doc. 1.) He provides an address 10 in Visalia, California, and names as the sole defendant David Killinger (“Defendant”), which he 11 pleads is a citizen of the State of Texas. (Id. at 1, 3.) 12 Plaintiff claims that, despite having “no contractual relationship” with him, Defendant is 13 “seeking payment” from him. (Doc. 1 at 4, 6.) He alleges that “[a]s an agent for the principal,” he 14 sent Defendant “an indorsement of the negotiable instrument,” to which Defendant “did not respond 15 within 10 days, did not provide requesting accounting, and did not provide a wet ink signature 16 claiming owe the debt.” (Id.) According to Plaintiff, Defendant “continues to attempt collection 17 despite these failures to respond.” (Id.) He requests “closure of all accounts,” an order requiring 18 Defendant “to either perform on the bill or discharge the contract,” or “alternatively” $5,000,000 19 and “[to] cease all collection attempts.” (Id. at 4.) 20 III. DISCUSSION 21 For the reasons discussed below, the Court finds that the complaint does not state any 22 cognizable claims. Plaintiff shall be provided with the legal standards that appear to apply to his 23 claims and will be granted an opportunity to file an amended complaint to correct the identified 24 deficiencies. 25 A. Diversity Jurisdiction 26 Plaintiff alleges that this Court has subject matter jurisdiction based on diversity of 27 citizenship. (Doc. 1 at 3.) Pursuant to 28 U.S.C. § 1332 (a), federal district courts have original 28 jurisdiction over civil actions in diversity cases “where the matter in controversy exceeds the sum 1 or value of $75,000” and where the matter is between “citizens of different States.” In other words, 2 the plaintiff and the defendants must be citizens of different states to satisfy the complete diversity 3 requirement of section 1332. Strawbridge v. Curtiss, 7 U.S. 267 (1806) (no plaintiff can be a citizen 4 of the same state as any of the defendants); Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718 , 5 722 (9th Cir. 2008) (citing Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996) (stating that diversity 6 jurisdiction requires “complete diversity of citizenship”)). 7 Plaintiff alleges that he is a citizen of California, and that Defendant is a citizen of Texas, 8 establishing diversity of the parties. (Doc. 1 at 3.) Plaintiff also alleges that the amount in 9 controversy for this action is $5 million dollars. (Id. at 4.) This amount, however, appears to be 10 wholly unsubstantiated. Plaintiff’s claims appear to be based on Defendant’s continued collection 11 of a debt without providing requested documentation, yet he does not allege any specific damages 12 as a result of those alleged wrongful collection efforts. Thus, it is not clear to the Court how 13 Plaintiff arrived at the alleged amount in controversy. 14 “The amount in controversy alleged by the proponent of federal jurisdiction—typically the 15 plaintiff in the substantive dispute—controls so long as the claim is made in good faith.” 16 Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106 (9th Cir. 17 2010). Here, it is not clear that Plaintiff’s $5 million dollar claim was made in good faith. Should 18 Plaintiff elect to file an amended complaint that purports to invoke this Court’s diversity 19 jurisdiction, he must substantiate his alleged $5 million amount in controversy by submitting 20 declarations and other evidence specifying the nature and amount of his damages. 21 B. Rule 8 22 Rule 8 of the Federal Rules of Civil Procedure states that a complaint must contain “a short 23 and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 24 8(a)(2). Here, Plaintiff’s complaint violates Rule 8 because it does not contain a short and plain 25 statement of the claim demonstrating that he is entitled to relief. 26 Although the Federal Rules use a flexible pleading policy, Plaintiff is required to give fair 27 notice to a defendant of the basis of the claim and must allege facts that support the elements of the 28 claim plainly and succinctly. A complaint must contain sufficient factual allegations to give the 1 defendant fair notice of the claim and the grounds upon which it rests. Twombly, 550 U.S. at 555 . 2 There are few factual allegations in the complaint that form the basis of Plaintiff’s purported 3 breach of contract claim. The complaint alleges in a vague and conclusory manner that Defendant 4 “is seeking payment” from him and did not provide certain documents. (Doc. 1 at 4, 6.) It is not 5 clear, however, how that conduct forms the basis of any breach of contract claim. 6 Plaintiff must set forth factual allegations against Defendant sufficient to state a claim. If 7 Plaintiff elects to amend his complaint, he must separate each claim, state the legal basis for the 8 claim, and identify how the facts alleged support and show that the defendant committed the 9 violation asserted as the legal basis for the claim. See Fed. R. Civ. P. 8(a). The failure to do so 10 shall result in dismissal of this action. 11 C. Legal Standards 12 In the event Plaintiff amends his complaint, the Court provides the following legal standards 13 that may be relevant to his action: 14 1. Breach of Contract [15] Plaintiff’s complaint is titled “Complaint for a Civil Case Alleging Breach of Contract,” but 16 no contract is alleged—in fact, Plaintiff expressly disavows the existence of a contract in the 17 complaint. (See Doc. 1 at 6 (“I have no contractual relationship with [Defendant].”).) In California, 18 a cause of action for breach of contract has four elements: (1) a contract exists between the parties; 19 (2) plaintiff has performed all the contractual duties or was excused from nonperformance, (3) 20 defendant has breached the contractual duties, and (4) plaintiff’s damages were a result of the 21 breach. Reichert v. Gen. Ins. Co., 68 Cal.2d 822, 830 (1968) (emphasis added). To state a claim 22 for breach of contract, Plaintiff is required to plead each of these elements supported by factual, non-conclusory allegations. [23] 2. Debt Collection [24] To the extent Plaintiff complains of wrongful debt collection, the following laws may apply. [25] The federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., “prohibits [26] debt collectors from making false or misleading representations and from engaging in various [27] abusive and unfair practices.” Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010) [28] 1 (quotation marks omitted). To state an FDCPA claim, the plaintiff must plead the following: “(1) 2 the plaintiff is a ‘consumer’ under 15 U.S.C. § 1692a(3); (2) the debt arises out of a transaction 3 entered into for personal purposes; (3) the defendant is a ‘debt collector’ under 15 U.S.C. § 4 1692a(6); and (4) the defendant violated one of the provisions contained in 15 U.S.C. §§ 1692a1692o.” Wheeler v. Premiere Credit of N. Am., LLC, 80 F. Supp. 3d 1108, 1112 (S.D. Cal. 2015) [5] (citing Turner v. Cook, 362 F.3d 1219 , 1226–27 (9th Cir. 2004)). The Act “imposes liability only [6] when an entity is attempting to collect debt.” Ho v. ReconTrust Co., 858 F.3d 568, 571 (9th Cir. [7] 2017) (citing 15 U.S.C. § 1692 (e)). A “debt collector” under the FDCPA includes any person (1) [8] “who uses any instrumentality of interstate commerce or the mails in any business the principal [9] purpose of which is the collection of any debts,” (2) “who regularly collects or attempts to collect, [10] directly or indirectly, debts owed or due or asserted to be owed or due another,” or (3) who is a [11] “creditor who, in the process of collecting his own debts, uses any name other than his own which [12] would indicate that a third person is collecting or attempting to collect such debts.” 15 U.S.C. § 13 1692a(6). However, the term does not include “any officer or employee of a creditor while, in the [14] name of the creditor, collecting debts for such creditor.” Id. [15] California’s Fair Debt Collection Practices Act, or Rosenthal Act, “mimics or incorporates 16 by reference the FDCPA’s requirements” and “makes available the FDCPA’s remedies for 17 violations.” Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012); see also Cal. Civ. 18 Code § 1788.17 (“Notwithstanding any other provision of this title, every debt collector collecting 19 or attempting to collect a consumer debt shall comply with the provisions of [the FDCPA], 20 inclusive, of, and shall be subject to the [FDCPA] remedies[.]”). To state a claim for a violation of 21 the Rosenthal Act, a plaintiff must allege that (i) the plaintiff is a “debtor,” (ii) the debt at issue is 22 a “consumer debt,” (iii) the defendant is a “debt collector,” and (iv) the defendant violated a 23 provision of the Act. Cal. Civ. Code § 1788.10 ; Ansari v. Elec. Document Processing Inc., No. 5:12-cv-01245-LHK, 2013 WL 4647621 , at *11 (N.D. Cal. Aug. 29, 2013). [24] Importantly, the “FDCPA’s definition of debt collector does not include the consumer’s [25] creditors,” unless the creditor used a name other than its own in collecting the debt. Gieseke v. [26] Bank of America, N.A., No. 13-cv-04772-JST, 2014 WL 718463 , at *5 (N.D. Cal. Feb. 23, 2014). [27] But a creditor can be a “debt collector” under the Rosenthal Act. Patera v. Citibank, N.A., 79 F. 28 1 Supp. 3d 1074, 1090 (N.D. Cal. 2015). 2 D. Leave to Amend 3 The Court has screened Plaintiff’s complaint and finds that it fails to state any cognizable 4 claims. Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely give 5 leave [to amend] when justice so requires.” Accordingly, the Court will provide Plaintiff with time 6 to file an amended complaint, so he can provide additional factual allegations. Lopez v. Smith, 203 7 F.3d 1122, 1126-30 (9th Cir. 2000). 8 Plaintiff is granted leave to file an amended complaint within thirty days. Plaintiff is 9 cautioned that an amended complaint supersedes all prior complaints filed in an action, Lacey v. 10 Maricopa Cty., 693 F.3d 896 , 907 n.1 (9th Cir. 2012), and must be “complete in itself without 11 reference to the prior or superseded pleading,” E.D. Cal. Local Rule 220. Therefore, in an amended 12 complaint, as in an original complaint, each claim and the involvement of each defendant must be 13 sufficiently alleged. The amended complaint should be clearly and boldly titled “First Amended 14 Complaint,” refer to the appropriate case number, and be an original signed under penalty of 15 perjury. Plaintiff should note that although he has been given the opportunity to amend, it is not 16 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 507 17 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 18 Plaintiff has a choice on how to proceed. Plaintiff may file an amended complaint if he can 19 substantiate the amount in controversy for purposes of subject matter jurisdiction based on diversity 20 jurisdiction, and if he believes that additional true factual allegations would state cognizable claims. 21 If Plaintiff files an amended complaint, the Court will screen that complaint in due course. 22 Alternatively, Plaintiff may choose to stand on his complaint subject to the Court issuing findings 23 and recommendations to the assigned district judge consistent with this order. Lastly, Plaintiff may 24 file a notice of voluntary dismissal. 25 IV. ORDER 26 Based on the foregoing, IT IS ORDERED that: 27 1. Within thirty (30) days from the date of service of this order, Plaintiff shall either: 28 a. File a First Amended Complaint; 1 b. Notify the Court in writing that he wants to stand on this complaint; or 2 c. File a notice of voluntary dismissal. 3 2. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the amended 4 complaint “First Amended Complaint” and refer to case number 1:25-cv-011605 JLT-SKO. 6 3. Failure to comply with this order may result in the dismissal of this action. [7] IT IS SO ORDERED. [8] 9 Dated: September 23, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE