1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ARRYANNE MOSS,

Plaintiff,

v.

INFINITY INSURANCE COMPANY, et al.,

Defendants.

Case No. 15-cv-03456-JSC 

ORDER REVIEWING COMPLAINT 

UNDER SECTION 1915 AND 

DISMISSING COMPLAINT WITH 

LEAVE TO AMEND

Re: Dkt. No. 2

This matter involves insurance claims arising from an automobile collision. Plaintiff 

Arryanne Moss (“Plaintiff”), proceeding in forma pauperis, filed the instant complaint against 

Defendants Infinity Insurance Company (“Infinity”), AWS Insurance Company (“AWS”), Lithia 

Chrysler, Jeep, Dodge of Santa Rosa (“Lithia”), and a number of Doe Defendants (collectively, 

“Defendants”). The Court previously granted Plaintiff’s application to proceed in forma pauperis. 

(Dkt. No. 6.) The Court must now review the allegations under 28 U.S.C. § 1915. Because the 

complaint fails to establish a basis for subject matter jurisdiction, the Court DISMISSES the 

complaint with leave to amend.

COMPLAINT ALLEGATIONS

In July 2012, Plaintiff—whose son was then 15 years old—visited her friend Charlotte 

Toth (“Toth”) at Lithia, the car dealership where Toth worked. There, Plaintiff entered a written 

contract with Lithia to purchase a 2012 Jeep liberty. Toth, who knew Plaintiff had a minor son, 

executed the contract on Lithia’s behalf. At Toth’s recommendation, Plaintiff also purchased 

“gap” insurance payable to AWS at $649 per month. In addition, although Toth knew that 

Plaintiff already had an auto insurance policy, Toth persuaded Plaintiff to purchase an automobile 

liability policy from Infinity. As Plaintiff did not have her credit card at the time, Toth 

Case 3:17-cv-00115-JSC Document 7 Filed 09/14/15 Page 1 of 5
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

volunteered to pay the cost of the Infinity insurance policy on her own personal card until it was in 

place. Toth did so. Lithia and Toth promised Plaintiff that the gap insurer would promptly pay 

for any loss of the vehicle, and that Infinity would pay for any loss incurred as a result of an 

accident involving the vehicle. Plaintiff paid all payments under the policy.

On September 6, 2012, Plaintiff’s vehicle was involved in a traffic accident and the vehicle 

was rendered a total loss. Plaintiff made a timely demand of payment to Infinity and AWS. 

Infinity refused to pay, denying coverage because Plaintiff’s son was not listed as an insured 

driver on the policy. Plaintiff then asked Toth to make a claim for benefits to AWS under the gap 

insurance policy. AWS denied her claim, as well.

The complaint includes seven causes of action. The first three causes of action allege that 

Lithia, Infinity, and AWS’s refusal to pay out on the insurance claims constitute breach of 

contract. In the fourth cause of action, Plaintiff alleges that all Defendants breached the implied 

covenant of good faith and fair dealing by failing and refusing to conduct an adequate 

investigation before denying and withholding benefits, failing to reasonably interpret provisions of 

her insurance policy, failing to provide a reasonable basis for denying the claims, withholding 

valid payments, and misrepresenting facts and policies. The fifth cause of action alleges 

negligence against all Defendants. The sixth and seventh causes of action arise under California’s 

Business & Professions Code. The Sixth cause of action is for false and misleading business 

practices under Section 17200, and the seventh is for false and misleading advertising practices 

under Section 17500. Plaintiff seeks damages, including compensatory, special, and punitive 

damages.

LEGAL STANDARD

The Court must dismiss an in forma pauperis (“IFP”) complaint before service of process 

if it is frivolous, fails to state a claim, or contains a complete defense to the action on its face. 28 

U.S.C. § 1915(e)(2). The Court retains discretion over the terms of dismissal, including whether 

to grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 

A complaint is frivolous for Section 1915 purposes where there is no subject matter 

jurisdiction. See Castillo v. Marshall, 207 F.3d 15, 15 (9th Cir. 1997) (citation omitted); see also 

Case 3:17-cv-00115-JSC Document 7 Filed 09/14/15 Page 2 of 5
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987) (recognizing the general proposition that a 

complaint should be dismissed as frivolous on Section 1915 review where subject matter 

jurisdiction is lacking). And in any event, the Court has an independent obligation to address 

whether it has subject matter jurisdiction over the case. See Valdez v Allstate Ins. Co., 372 F.3d 

1115, 1116 (9th Cir. 2004) (noting that district courts are “obligated to consider sua sponte

whether [they] have subject matter jurisdiction”). 

Regarding dismissals for failure to state a claim, Section 1915(e)(2) parallels the language 

of Federal Rules of Civil Procedure 12(b)(6). Lopez, 203 F.3d at 1126-27. The complaint 

therefore must allege facts that plausibly establish the defendant’s liability. See Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555-57 (2007). A complaint must also comply with Rule 8, which 

requires the complaint to contain “a short and plain statement of the grounds for the court’s 

jurisdiction[.]” Fed. R. Civ. P. 8(a)(1). 

DISCUSSION

I. Lack of Subject Matter Jurisdiction

Plaintiff’s complaint lacks a basis for federal subject matter jurisdiction and must be 

dismissed pursuant to Section 1915(e). First, the complaint contains no short and plain statement 

of the Court’s jurisdiction, which fails to comply with Rule 8. But even apart from this 

requirement, the allegations and claims otherwise fail to support a basis for jurisdiction.

In most cases, original federal subject matter jurisdiction may be premised on two grounds: 

(1) diversity jurisdiction, or (2) federal question jurisdiction. Plaintiff’s complaint alleges only 

state law claims and does not allege that any defendant violated her federal rights, so the only 

jurisdictional hook in this action can be through diversity. To properly allege diversity 

jurisdiction, a plaintiff must claim damages in excess of $75,000. 28 U.S.C. § 1332(a). In 

addition, “diversity jurisdiction requires complete diversity between the parties—each defendant 

must be a citizen of a different state from each plaintiff.” Diaz v. Davis (In re Digimarc Corp. 

Derivative Litig.), 549 F.3d 1223, 1234 (9th Cir. 2008); 28 U.S.C. § 1331. Plaintiff has not 

alleged facts to meet either requirement.

“Generally, the amount in controversy is determined from the face of the pleadings.” 

Case 3:17-cv-00115-JSC Document 7 Filed 09/14/15 Page 3 of 5
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

Crum v. Circus Circus Enters., 231 F.3d 1129, 1131 (9th Cir. 2000). Here, Plaintiff has not 

alleged any facts from which the Court can draw a conclusion about the amount in controversy at 

all. Her prayer for relief seeks unpaid benefits under the insurance policy for the total loss of her 

car, but she does not allege a value.1 Nor does Plaintiff assign a dollar value to the any of the 

other damages she seeks. While Plaintiff also seeks punitive damages, courts “scrutinize [a] claim 

closely” where “a claim for punitive damages makes up the bulk of the amount in controversy” as 

it may here. Cason v. Cal. Check Cashin Stores, No. No. 13-cv-03388-JCS, 2013 WL 5609329, at 

*3 (N.D. Cal. Oct. 11, 2013) (citations omitted). Plaintiff’s complaint does not allege an amount 

in controversy and therefore it is not apparent that the matter in controversy exceeds the sum or 

value of $75,000, exclusive of interest or costs. The complaint therefore fails to allege diversity 

jurisdiction. See, e.g., White v. Lemendola, No. CIV S-10-3303 KJM DAD PS, 2011 WL 

2414420, at *2 (E.D. Cal. June 8, 2011).

Moreover, the complaint does not adequately allege complete diversity between the 

parties. “A plaintiff suing in a federal court must show in his pleading, affirmatively and 

distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, 

the court, on having the defect called to its attention or on discovering the same, must dismiss the 

case unless the defect can be corrected by amendment.” Tosco Corp. v. Cmtys. for a Better Env’t, 

236 F.3d 495, 499 (9th Cir. 2001) (internal quotation marks and citation omitted), abrogated on 

other grounds by Hertz Corp. v. Friend, 559 U.S 77 (2010); see also Kanter v. Warner-Lambert 

Co., 265 F.3d 853, 857 (9th Cir. 2001) (“Absent unusual circumstances, a party seeking to invoke 

diversity jurisdiction should be able to allege affirmatively the actual citizenship of the relevant 

parties.” ). Thus, where the plaintiff makes no allegations in the complaint regarding citizenship, 

the court cannot properly exercise diversity jurisdiction over the claim. See Kanter, 265 F.3d at 

857 (“[F]ailure to specify state citizenship [is] fatal to [an] assertion of diversity jurisdiction.”);

 

1

Taking judicial notice that the original manufacturer’s suggested retail price of a 2012 Jeep 

Liberty was $23,395, even if she seeks benefits to recoup the full value of the car at the time of 

purchase, this does not satisfy the $75,000 amount-in-controversy requirement. See 2012 Jeep 

Liberty, US News Best Cars, http://usnews.rankingsandreviews.com/cars-trucks/Jeep_Liberty/

(last visited Sept. 10, 2015).

Case 3:17-cv-00115-JSC Document 7 Filed 09/14/15 Page 4 of 5
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

Rilling v. Burlington N. R.R. Co., 909 F.2d 399, 400 (9th Cir. 1990) (holding that there was no 

diversity jurisdiction where the plaintiff made no allegations with respect to the citizenship of the 

defendant). Here, rather than “affirmatively and distinctly” alleging that Infinity, AWS, and Lithia 

are citizens of states other than California, Plaintiff merely describes them as businesses of 

“unknown legal origin and form[.]” (Dkt. No. 1 ¶¶ 2-5.) This is not enough. See Kanter, 265 

F.3d at 857; Rilling, 909 F.2d at 400; see, e.g., Telscape Comm’cns, Inc. v. Aspect Software, Inc., 

No. 2:10-cv-00756-JHN-PLAx, 2010 WL 1444573, at *1 (C.D. Cal. Apr. 8, 2010).

In short, because the complaint does not allege that any defendant violated Plaintiff’s 

federal rights and does not allege facts supporting the amount in controversy or the citizenship of 

all relevant parties, allegations necessary to establish diversity jurisdiction, the complaint does not 

demonstrate a basis for federal subject matter jurisdiction and fails to survive Section 1915 review. 

See, e.g., Smiley v. JP Morgan Chase, No. 14-cv-01651 NC, 2014 WL 2605434, at *2 (N.D. Cal. 

June 10, 2014). When a court dismisses a complaint for failure to properly allege diversity 

jurisdiction, leave to amend should be granted unless doing so would be futile. See Jacobs v. 

Patent Enf’t Fund, 230 F.3d 565, 567-68 (9th Cir. 2000). Because it is possible that diversity 

jurisdiction exists in this matter, the Court will grant Plaintiff leave to file an amended complaint.

CONCLUSION

For the reasons described above, the Complaint does not allege facts necessary to establish 

either diversity jurisdiction or federal question jurisdiction. The complaint is therefore fails to 

allege a basis for subject matter jurisdiction and must be dismissed pursuant to Section 1915(e). If 

Plaintiff can correct this pleading defect, she may file an amended complaint no later than October

1, 2015. 

IT IS SO ORDERED.

Dated: September 11, 2015

______________________________________

JACQUELINE SCOTT CORLEY

United States Magistrate Judge

Case 3:17-cv-00115-JSC Document 7 Filed 09/14/15 Page 5 of 5