United States District Court, D. Nevada
to 28 U.S.C. § 1915 Plaintiff is proceeding in this
action pro se and has requested authority pursuant
to 28 U.S.C. § 1915 to proceed in forma
pauperis. Docket No. 1. Plaintiff also submitted a
complaint. Docket No. 1-1.
In Forma Pauperis Application
has submitted the affidavit required by § 1915(a).
Docket No. 1. The Court concludes that Plaintiff has shown an
inability to prepay fees and costs or give security for them.
Accordingly, the request to proceed in forma
pauperis will be granted pursuant to 28 U.S.C. §
1915(a). The Clerk's Office is further
INSTRUCTED to file the complaint on the
docket. The Court will now review Plaintiff's complaint.
granting an application to proceed in forma
pauperis, courts additionally screen the complaint
pursuant to § 1915(e). Federal courts are given the
authority to dismiss a case if the action is legally
“frivolous or malicious, ” fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). When a court dismisses a complaint under
§ 1915, the plaintiff should be given leave to amend the
complaint with directions as to curing its deficiencies,
unless it is clear from the face of the complaint that the
deficiencies could not be cured by amendment. See Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Civ. P. 12(b)(6) of the Federal Rules of Civil Procedure
provides for dismissal of a complaint for failure to state a
claim upon which relief can be granted. Review under
Fed.R.Civ.P. 12(b)(6) is essentially a ruling on a question
of law. See Chappel v. Lab. Corp. of Am., 232 F.3d
719, 723 (9th Cir. 2000). A properly pled complaint must
provide 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. Fed.R.Civ.P. 8(a); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Although Fed.R.Civ.P. 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)). The court must accept
as true all well-pled factual allegations contained in the
complaint, but the same requirement does not apply to legal
conclusions. Iqbal, 556 U.S. at 679. Mere recitals
of the elements of a cause of action, supported only by
conclusory allegations, do not suffice. Id. at 678.
Secondly, where the claims in the complaint have not crossed
the line from conceivable to plausible, the complaint should
be dismissed. Twombly, 550 U.S. at 570. Allegations
of a pro se complaint are held to less stringent
standards than formal pleadings drafted by lawyers. Hebbe
v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010)
(finding that liberal construction of pro se
pleadings is required after Twombly and
Grounds for the Court's Jurisdiction
Court has a duty to ensure that it has subject matter
jurisdiction over the dispute before it, an issue it may
raise at any time during the proceedings. See, e.g.,
Fed.R.Civ.P. 12(h)(3). Federal courts are courts of limited
jurisdiction and possess only that power authorized by the
Constitution and statute. See Rasul v. Bush, 542
U.S. 466, 489 (2004). “A federal court is presumed to
lack jurisdiction in a particular case unless the contrary
affirmatively appears.” Stock West, Inc. v.
Confederated Tribes of the Colville Reservation, 873
F.2d 1221, 1225 (9th Cir. 1989). “The party asserting
federal jurisdiction bears the burden of proving that the
case is properly in federal court.” McCauley v.
Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001)
(citing McNutt v. General Motors Acceptance Corp.,
298 U.S. 178, 189 (1936)).
Federal Question Jurisdiction
to 28 U.S.C. § 1331, federal courts have original
jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.”
Cases “arise under” federal law either when
federal law creates the cause of action or where the
vindication of a right under state law necessarily turns on
the construction of federal law. Republican Party of Guam
v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002).
Whether federal question jurisdiction exists is based on the
“well-pleaded complaint rule, ” which provides
that “federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's
properly pleaded complaint.” Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987).
case, Plaintiff states he is bringing a claim for trademark
infringement but does not identify a federal cause of action,
or otherwise raise a federal question. Docket No. 2 at
2, 4 (identifying claims for trademark infringement). The
pro se complaint form Plaintiff has submitted
requires a plaintiff to “list the specific federal
statutes, federal treaties, and/or provisions of the United
States Constitution that are at issue” in the case to
establish jurisdiction. Docket Nos. 1-1 at 3, 2 at 3.
Plaintiff provides a state certificate of registration for
his trademark that he alleges Defendant violated, but fails
to provide a basis for federal jurisdiction over the
violation of a state registered trademark. See
Docket Nos. 1-1, 1-2 at 2.