Mescia-Donnelly v. Camp

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 VALERIE MESCIA-DONNELLY Case No. 2:22-cv-00178-RFB-EJY 5 Plaintiff, ORDER 6 v. and 7 JAMES D. CAMP, JR., JAMES D. CAMP, III, LAWRENCE SAUL BLUMBERG, 8 NICHOLAS A. MESCIA, III, REPORT AND RECOMMENDATION 9 Defendants. RE: ECF No. 1-2 [10] 11 Pending before the Court is Plaintiff Mescia-Donnelly’s application to proceed in forma 12 pauperis and Complaint. ECF Nos. 1, 1-2. 13 I. In Forma Pauperis Application 14 Plaintiff submitted the declaration and information required by 28 U.S.C. § 1915 (a) showing 15 an inability to prepay fees and costs or give security for them. ECF No. 1. Therefore, Plaintiff’s in 16 forma pauperis application is granted. 17 II. Screening the Complaint 18 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 19 under 28 U.S.C. § 1915 (e)(2). When screening a complaint, the Court must identify cognizable 20 claims and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 21 granted or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 22 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 23 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 24 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual 25 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 26 U.S. 662, 678 (2009). The Court liberally construes pro se complaints and may only dismiss them 27 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 1 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 2 556 U.S. at 678). 3 When considering whether a complaint is sufficient to state a claim, all allegations of material 4 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 5 v. Turner Broad. Sys. Inc., 135 F.3d 658 , 661 (9th Cir. 1998) (citation omitted). Although the 6 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 7 more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A 8 formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 9 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 10 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 11 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 12 III. DISCUSSION 13 In her Complaint, Plaintiff states she is a citizen of South Carolina and that the Defendants 14 are citizens of Florida, New York, and Massachusetts. ECF No. 1-2 at 1-2. While on its face this 15 establishes diversity of citizenship of the parties under 28 U.S.C. § 1332 , Plaintiff fails to 16 demonstrate personal jurisdiction over any party to this suit. Personal jurisdiction is established 17 when: “(1) provided for by law; and (2) the exercise of jurisdiction comports with due process.” 18 Southport Lane Equity II, LLC v. Downey, 177 F. Supp. 3d 1286, 1290 (D. Nev. 2016) citing 19 Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1207 (9th Cir. 1980). “When no federal statute 20 governs personal jurisdiction, a federal court applies the law of the forum state.” Id. citing Boschetto 21 v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). Where a state, such as Nevada, has a “long-arm” 22 statute providing state “courts jurisdiction to the fullest extent permitted by the Due Process Clause 23 of the Fourteenth Amendment, a court need only address federal due process standards.” Id. citing 24 Arbella Mut. Ins. Co. v. Eighth Judicial Dist. Court, 122 Nev. 509 , 134 P.3d 710, 712 (2006) (citing [25] Nev. Rev. Stat. § 14.065 ); Boschetto, 539 F.3d at 1015 . 26 Under these standards, a defendant must generally have “certain minimum contacts” with the 27 forum state before personal jurisdiction will be established. Int’l Shoe Co. v. Washington, 326 U.S. 1 and specific jurisdiction.” Boschetto, 539 F.3d at 1016 ; see also Helicopteros Nacionales de 2 Colombia, S.A. v. Hall, 466 U.S. 408 , 413–414 (1984). General jurisdiction is properly exercised 3 only when “a defendant’s contacts with a forum are so substantial, continuous, and systematic that 4 the defendant can be deemed to be ‘present’ in that forum for all purposes.” Menken v. Emm, 503 5 F.3d 1050 , 1056–57 (9th Cir. 2007). Here, Plaintiff pleads no facts in support of the conclusion that 6 Defendants’ contacts with Nevada are sufficient to establish general jurisdiction. ECF No. 1-2. In 7 fact, Plaintiff fails to assert any claims at all regarding Defendants’ relationship with the State of 8 Nevada. Id. 9 A review of specific jurisdiction also does not save Plaintiff’s Complaint. Specific 10 jurisdiction is “jurisdiction based on the relationship between the defendant’s forum contacts and 11 plaintiff’s claims.” Menken, 503 F.3d at 1057. “[T]he defendant’s conduct and connection with the 12 forum State [must be] such that he should reasonably anticipate being haled into court there.” 13 World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). “[M]ere injury to a forum 14 resident is not a sufficient connection to the forum.” Walden v. Fiore, 571 U.S. 277, 290 (2014). 15 Again, Plaintiff alleges no facts establishing specific jurisdiction over Defendants. 16 IV. Order 17 IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to Proceed in forma pauperis 18 (ECF No. 1) is GRANTED. 19 V. RECOMMENDATION 20 IT IS HEREBY RECOMMENDED that Plaintiff’s Complaint (ECF No. 1-2) be 21 DISMISSED without prejudice so that Plaintiff may bring her claim in a court that has jurisdiction 22 over the parties. 23 Dated this 1st day of February, 2022. [25] 26 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE [27] 1 NOTICE 2 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be 3 in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has 4 held that the courts of appeal may determine that an appeal has been waived due to the failure to file 5 objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also 6 held that (1) failure to file objections within the specified time and (2) failure to properly address 7 and brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal 8 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 9 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452 , 454 (9th Cir. 1983).