Case No. 3:19-cv-01255-YY
FINDINGS AND RECOMMENDATIONS :
Pro se plaintiff Anthony Gerald Gabry, who is proceeding in forma pauperis, has failed to comply with this court's order to show cause in writing by November 12, 2019, why his case should not be dismissed. ECF #13. Accordingly, this case should be dismissed without prejudice.
The in forma pauperis statute states that "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines . . . the action . . . fails to state a claim on which relief may be granted." 28 USC §1915(e)(2)(B)(ii). Furthermore, "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the grounds for the court's jurisdiction; . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." FRCP 8(a). "Rule 8 does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2006) (citations omitted). "The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
Federal courts hold a pro se litigant's pleadings to "less stringent standards than formal pleadings drafted by lawyers." Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987); see Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (holding that a document filed pro se "is to be liberally construed"; a plaintiff need only give the defendant fair notice of the claim and the grounds on which it rests) (citation omitted). "Although a pro se litigant . . . may be entitled to great leeway when the court construes his pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong." Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
Here, plaintiff alleges a breach of contract claim against defendant Mega Floors. Compl., Section III, ECF #2. However, plaintiff has failed to provide any specifics regarding the contractual provisions at issue and how defendant allegedly breached them.
Plaintiff also has failed to establish personal jurisdiction. "Federal due process jurisprudence requires that, to be subject to the personal jurisdiction of a federal court, a nonresident defendant must have at least minimum contacts with the court's forum state such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice." Control Sols., Inc. v. MicroDAQ.com, Inc., 126 F. Supp. 3d 1182, 1188 (D. Or. 2015) (quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir.2004)) (internal quotation marks omitted). Plaintiff has brought suit against defendant, which he describes is a Georgia corporation, but fails to show defendant's presence, domicile, consent, or minimum contacts in the state of Oregon. Compl., Section II(B)(2)(b), ECF #1.
Further, plaintiff has failed to establish proper venue, pursuant to 28 U.S.C. § 1391(b)(1) and (2). Venue is proper in a judicial district "in which a substantial part of the events or omissions giving rise to the claim occurred," or "in which any defendant resides, if all defendants are residents of the state in which the district is located." 28 U.S.C. § 1391(b)(1), (2). A corporation is deemed to reside "in any judicial district in which such defendant is subject to the court's personal jurisdiction." 28 U.S.C. § 1391(c)(2). Plaintiff has failed to cogently make a showing of any connection between defendant, a Georgia corporation, or its alleged actions and Oregon.
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, December 31, 2019. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED December 11, 2019.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge