Lopes v. Reddit, Inc.

[6] 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA [10] CORNELIUS LOPES, Case No. 20-cv-08086-NC [11] Plaintiff, ORDER TO SHOW CAUSE 12 WHY CASE SHOULD NOT BE v. DISMISSED FOR LACK OF 13 SUBJECT MATTER REDDIT, INC., and others, JURISDICTION [14] Defendants. Re: Dkt. No. ECF 14 [16] 17 I. BACKGROUND 18 This order evaluates the Second Amended Complaint filed by Plaintiff Cornelius 19 Lopes on April 30, 2021. ECF 14. The second amended complaint did not establish 20 whether the Court has subject matter jurisdiction over the case. See ECF 14. Additionally, 21 Lopes presented the second amended complaint in narrative format without clear 22 distinction between the claims or the defendants involved in each claim. See ECF 14. 23 Thus, the Court ORDERS Lopes to revise the format of his amended complaint according 24 to Rule 8 and 10, and to establish within it why the Court has subject matter jurisdiction 25 over this case by July 6, 2021. The case management conference (“CMC”) will be 26 conducted by phone and postponed from June 30, 2021, to August 4, 2021, at 10:00 a.m. 27 The CMC statement is due by July 28, 2021. 1 II. DISCUSSION 2 A. Format of the Pleading 3 The Court first considers the form of Lopes’ pleading. Rule 10 of the Federal Rules 4 of Civil Procedure requires that the claims and defenses in a complaint be formatted in 5 numbered paragraphs, with each paragraph “limited as far as practicable to a single set of 6 circumstances.” Fed. R. Civ. P. 10(b). Additionally, Rule 8(a) of the Federal Rules of 7 Civil Procedure requires pleadings that state a claim of relief to include “(1) a short and 8 plain statement of the grounds for the court's jurisdiction, unless the court already has 9 jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain 10 statement of the claim showing that the pleader is entitled to relief; and (3) a demand for 11 the relief sought, which may include relief in the alternative or different types of relief.” 12 Fed. R. Civ. P. 8(a). Further guidance on formatting and examples are available in the 13 Court’s Pro Se Handbook, found at: http://www.cand.uscourts.gov/pro-se-litigants/. 14 The Court finds that the complaint does not comply with Rules 8 and 10. 15 Specifically, the complaint is not formatted in numbered paragraphs, and certain 16 paragraphs cover multiple claims. See ECF 14; Fed. R. Civ. P. 8, 10. Furthermore, in 17 certain paragraphs, it is unclear who the alleged defendant is due to misspellings. See ECF 18 14 at 4–5 (raising claims against defendant “Robinstein,” a misspelling of either 19 “Robinson” or “Borenstein”). The Court recommends amending the complaint to include 20 headings labeled “parties,” “jurisdiction,” “venue,” “statement of facts,” “claims,” and 21 “demand for relief.” For clarity, the Court also recommends structuring paragraphs under 22 the “claims” heading to include only a single claim, arising out of a single set of 23 circumstances, against the relevant defendant(s). 24 B. Subject Matter Jurisdiction 25 Next, the Court considers whether there is subject matter jurisdiction over this 26 dispute. Federal courts are required to examine their cases for jurisdictional issues. See 27 B.C. by & Through Powers v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1 jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 2 Federal courts only have jurisdiction over three types of cases: (1) where the United States 3 is a party; (2) where there is a “federal question” asserted; and (3) where there is complete 4 diversity of citizenship between the parties and the amount in controversy exceeds 5 $75,000. See 28 U.S.C. §§ 1331–32. A case “arises under” a federal question if the 6 complaint establishes “either that federal law creates the cause of action or that the 7 plaintiff's right to relief necessarily depends on resolution of a substantial question of 8 federal law.” Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1219 (9th Cir. 2009) 9 (citations omitted). If a federal court has subject matter jurisdiction over a federal question 10 claim, the court can exercise discretion over supplemental state law claims that arise out of 11 the same case or controversy as the federal question claim, subject to the court’s discretion. [12] 28 U.S.C. § 1367 . 13 After examining the second amended complaint, the Court cannot establish subject 14 matter jurisdiction over Lopes’ case. First, the United States is not a party. Second, 15 although Lopes referenced and alluded to federal questions in the complaint (such as 42 16 U.S.C. § 1983 , the Federal Wiretap Act, the Lanham Act, and the Copyright Act), Lopes 17 has not clearly established a cause of action that arises under federal law. See ECF 14 at 18 4–8. Lopes alleges claims related to defamation, slander, intentional infliction of 19 emotional distress, negligent infliction of emotional distress, and the right to publicity, but 20 these claims all arise under state law. See ECF 14 at 1–5, 8–9. Given that Lopes has not 21 established a cause of action arising under federal law, the Court cannot exercise 22 supplemental jurisdiction over the state law claims. See 28 U.S.C. § 1367 . Third, Lopes 23 has not demonstrated complete diversity of citizenship between the parties or alleged an 24 amount in controversy exceeding $75,000. See 28 U.S.C. § 1331–32. 25 Applied here, it is difficult for the Court to assess subject matter jurisdiction due to 26 the form of Lopes’ complaint. As to federal question jurisdiction, the complaint mentions 27 several potential federal issues, but the Court cannot assess whether the Lanham Act, 1 demonstrate the plausibility of these claims, the Court recommends directly applying those 2 claims to the relevant laws described in the sections below. 3 1. The Lanham Act 4 To allege a violation of the Lanham Act, a plaintiff must demonstrate (1) ownership 5 of a valid, protectable trademark and (2) that defendant’s use of the mark is likely to cause 6 confusion. Applied Info. Scis. Corp. v. eBay, Inc., 511 F.3d 966, 969 (9th Cir. 2007) 7 (citing Brookfield Commc’ns, Inc. v. W. Coast Entm't Corp., 174 F.3d 1036, 1047 , 1053 8 (9th Cir.1999)). Trademark ownership is acquired through prior use in a commercial 9 market. See Grupo Gigante SA De CV v. Dallo & Co., 391 F.3d 1088, 1093 (9th Cir. 10 2004). To constitute a violation of the Lanham Act, the mark must be used in commerce 11 in a manner that would likely cause confusion to a valid, protectable trademark. 15 U.S.C. 12 § 1114. Here, Lopes’ second amended complaint does not sufficiently allege a Lanham 13 Act claim because Lopes has not established that he owns a valid, protectable trademark, 14 nor has he clearly stated which defendant has used the mark in a manner that would cause 15 commercial confusion. 16 2. Federal Copyright Act of 1976 17 When alleging a Federal Copyright Act claim, a plaintiff must demonstrate “(1) 18 ownership of a valid copyright, and (2) copying of constituent elements of the work that 19 are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). After 20 examining the second amended complaint, Lopes has not clearly alleged a Federal 21 Copyright Act claim because he has not demonstrated ownership of a valid copyright nor 22 copying of constituent elements of the work that are original. 23 3. Federal Wiretap Act 24 To allege a Federal Wiretap Act claim under 18 U.S.C. § 2511 (1)(a), a plaintiff can 25 demonstrate that a defendant “intentionally intercept[ed]” or “endeavor[ed] to intercept . . . 26 any wire, oral, or electronic communication.” 18 U.S.C. § 2511 (1)(a). In terms of this 27 Act, an “oral communication” is understood as that “in which the speaker had a 1 Supp. 3d 797, 816 (N.D. Cal. 2020) (quoting U.S. v. McIntyre, 582 F.2d 1221, 1223 (9th 2 Cir. 1978)). Additionally, a plaintiff can allege a Federal Wiretap Act violation under 3 § 2511(1)(c) by demonstrating that a defendant disclosed, or attempted to disclose, to 4 another person the contents of any communication obtained in violation of the Act. See 18 5 U.S.C. § 2511 (1)(c). 6 As applied here, Lopes has not sufficiently alleged violations of the Federal Wiretap 7 Act under § 2511(1)(a) or § 2511(1)(c). Lopes has not clearly demonstrated which 8 defendants have intercepted oral communications in which Lopes had a reasonable 9 expectation of privacy. See 18 U.S.C. § 2511 (1)(a); ECF 14 at 6 (“The plaintiff was 10 unaware of the recording . . . The defendants need to [be] charge[d] with [F]ederal 11 Wiretap Act [violations] . . .”). Similarly, Lopes has not clearly demonstrated which 12 defendants have disclosed the contents of any communications obtained in violation of the 13 Federal Wiretap Act. See 18 U.S.C. § 2511 (1)(c); ECF 14 at 7 (“Here the defendant’s oral 14 communication . . . [was] used . . . for their political subdivisions to stop [plaintiff’s] 15 political aspirations.”). 16 4. 42 U.S.C. § 1983 17 When stating a violation of constitutional rights under 42 U.S.C. § 1983 , a plaintiff 18 must allege that (1) the conduct complained of was committed by a person acting under 19 color of state law and (2) the conduct violated a right secured by the Constitution or laws 20 of the United States. Gomez v. Toledo, 446 U.S. 635, 639 (1980). Here, Lopes alleges a 21 violation of the First Amendment, but he has not demonstrated that any defendant was a 22 state actor operating under the color of state law. See ECF 14 at 9 (“Does the First 23 Amendment offer no greater or lesser protection to opinions than to other statements . . . 24 ?”). Therefore, as alleged, the Court cannot ascertain whether there is subject matter 25 jurisdiction based on federal question. 26 // 27 // 1 || 1. CONCLUSION 2 Accordingly, the Court ORDERS Lopes to revise the format of his amended 3 || complaint according to Rule 8 and 10, and to establish within it why the Court has subject 4 || matter jurisdiction over this case by July 6, 2021. The CMC is postponed from June 30, 5 || 2021, to August 4, 2021, at 10:00 a.m., by phone, and the CMC statement is due by July 6 || 28, 2021. If Lopes is unable to establish subject matter jurisdiction through valid federal 7 || law claims or through diversity jurisdiction, the Court will recommend dismissal of this 8 || case. However, if this Court dismisses the case for lack of subject matter jurisdiction, 9 || Lopes can still file his state law claims in state court. 10 Finally, the Court reminds Lopes that the Federal Pro Se Program at the San Jose 11 || Courthouse provides free information and limited-scope legal advice to pro se litigants in 12 || federal civil cases. The Federal Pro Se Program is available by phone appointment at 13 |} (408) 297-1480. There are also online resources available on the Court’s webpage at: 14 || □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 3 15 IT IS SO ORDERED. [16] 5 17 Dated: June 15, 2021 h-_———— _ NATHANAEL M. COUSINS 18 United States Magistrate Judge