Ballering v. All State Attorney Generals & Lemon Law Dep'ts

• Decision Date: 29 January 2021
• Docket Number: CIV. NO. 20-00530 LEK-RT
• Court: U.S. District Court — District of Hawaii
• Parties: SCOTT LYNN BALLERING, Plaintiff, v. ALL STATE ATTORNEY GENERALS & LEMON LAW DEPARTMENTS, FCA LLC AUTOMOTIVE GROUP, ALL AUTO MANUFACTURES, ALL AUTOMOTIVE DEALERS, BOSCH AUTOMOTIVE, NSTB, ALL AUTO INSURANCE COMPANIES, JUDGE CHAD F. KENNEY, Defendants.

SCOTT LYNN BALLERING, Plaintiff, v. ALL STATE ATTORNEY GENERALS & LEMON LAW DEPARTMENTS, FCA LLC AUTOMOTIVE GROUP,ALL AUTO MANUFACTURES, ALL AUTOMOTIVE DEALERS, BOSCH AUTOMOTIVE,NSTB, ALL AUTO INSURANCE COMPANIES, JUDGE CHAD F. KENNEY, Defendants.

CIV. NO. 20-00530 LEK-RT

UNITED STATES DISTRICT COURT DISTRICT OF HAWAII

January 29, 2021

ORDER DISMISSING PLAINTIFF'S AMENDED COMPLAINT FOR A CIVIL CASE AND DENYING PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS

On December 4, 2020, pro se Plaintiff Scott Lynn Ballering ("Ballering") filed his Application to Proceed in District Court Without Prepaying Fees or Costs ("Application"). [Dkt. no. 4.] Ballering filed his Amended Complaint for a Civil Case ("Amended Complaint") on December 30, 2020. [Dkt. no. 5.] The Court has considered the Application as a non-hearing matter pursuant to Rule LR7.1(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii. For the reasons set forth below, the Amended Complaint is hereby dismissed without prejudice, and the Application is denied. In other words, Ballering will be allowed to file a second amended complaint to try to cure the defects in the Amended Complaint, but he must pay the $402.00 filing fee when he does so. Ballering's second amended complaint must be filed and the filing fee must be paid by March 30, 2021.

BACKGROUND

I. This Action

Ballering initiated this action on December 3, 2020. [Complaint for a Civil Case ("Complaint"), filed 12/3/20 (dkt. no. 1).] However, because the Amended Complaint supersedes the original Complaint, only the allegations in the Amended Complaint will be considered. See Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) ("It is well-established . . . that an amended complaint supersedes the original, the latter being treated thereafter as non-existent." (citations and internal quotation marks omitted)).

According to the Amended Complaint, Ballering "is a citizen of the State of Washington." [Amended Complaint at ¶ II.B.1.a.] The defendants named in the Amended Complaint are: "All State Attorney Generals & Lemon Law departments"; "FCA LLC Automotive group"; "All automotive Manufactures"; "All Automotive dealers & repair center tied to a brand"; "Bosch automotive"; National Safety Transportation Bureau; "Auto Insurance Industry"; and Judge Chad F. Kenney. [Id. at ¶¶ 1A.-B.] Ballering asserts that federal question jurisdiction,pursuant to 28 U.S.C. § 1331, and diversity jurisdiction, pursuant to 28 U.S.C. § 1332, exist in this case. [Id. at ¶ II.]

Ballering does not expressly identify what claims he is alleging, but the gist of the Amended Complaint is that Ballering is challenging:

-the manufacture, sale, and promotion of unsafe vehicles; see, e.g., id. at ¶ II.A;

-inadequate processes for notifying vehicle owners about safety recalls, other vehicle faults, and the application of sales taxes; see, e.g., id. at pgs. 5 and 8 of 9;

-state attorney generals' failure "to really help consumers process lemon claims"; see, e.g., id. at ¶ IV.4;

-Judge Kenney's failure consider the evidence before dismissing Ballering's case; see, e.g., id. at ¶ III.4; and judges' general failure to perform their duties; see, e.g., id. at ¶ IV.9; and

-the payment of "bailout" funds to entities that design, manufacture, market, sell, and maintain unsafe vehicles see, e.g., id. at ¶ IV.3.

The relief that Ballering seeks includes an order requiring all vehicle manufacturers to develop a plan "outlining the entire process of how the consumer's vehicles are going to be replaced" with safer vehicles and to send this plan to every vehicle owner. [Id. at ¶ IV.10.] Ballering states he owns a Jeep Grand Cherokee Limit, and he apparently cites safety issues, lack of recall notices, and insufficient disclosures as examples of the issues that he raises in this case. [Id. at pg. 5 of 9.]

II. Actions in Other Districts

Ballering has filed numerous other actions in other United States District Courts around the country. The following are the actions that are similar to the instant case.

Ballering filed a Complaint for a Civil Case in Ballering v. All State Attorney Generals lemon law, et al., Civil No. 2:20-06343 CFK (E.D. Penn.), on December 17, 2020 ("Pennsylvania Action" "Pennsylvania Complaint"). [Pennsylvania Action, dkt. no. 1.] Many of the allegations in the Pennsylvania Complaint are identical to allegations in the Amended Complaint in the instant case. On December 21, 2020, Ballering filed an Amended Complaint for a Civil Case in the Pennsylvania Action, but the defendants and the allegations in the amended complaint were completely different from those in the Pennsylvania Complaint. [Id., dkt. no. 3.] Further, the heading of the amended complaint indicated that the document was to be filed in the United States District Court for the District of Portland. On December 28, 2020, United States District Judge Chad F. Kenney issued a Memorandum and an Order that dismissed the Pennsylvania Action because both the Pennsylvania Complaint and the amended complaint did not comply with Fed. R. Civ. P. 8. [Id., dkt. nos. 7, 8.] Judge Kenney concluded that both the Pennsylvania Complaint and the amended complaint were "based on nearly incomprehensible allegations of harm and many fantasticclaims for relief to which Plaintiff is not, from a mere reading, entitled and containing only boilerplate recitations of jurisdiction without a factual statement of grounds for jurisdiction." [Id., dkt. no. 7.]

Ballering filed a Complaint for a Civil Case in Ballering v. All State Attorney Generals lemon law, et al., Civil No. 3:20-02166 IM (D. Or.), on December 14, 2020 ("Oregon Action" "Oregon Complaint"). [Oregon Action, dkt. no. 1.] He filed an Amended Complaint for a Civil Case in the Oregon Action on December 31, 2020 ("Oregon Amended Complaint"). [Id., dkt. no. 6.] The Oregon Amended Complaint appears to be identical to the Amended Complaint filed in the instant case. As of the date of this Order, litigation of the Oregon Action was pending Ballering's payment of the filing fee or submission of an application to proceed in forma pauperis ("IFP"). See id., Order, filed 12/22/20 (dkt. no. 3) (ordering Ballering to pay the filing fee or submit an IFP application); id., Clerk's Notice of Mailing, filed 12/31/20 (dkt. no. 5) (noting the 12/22/20 order had to be resent to Ballering because of an error in his address).

Ballering filed a Complaint for a Civil Case in Ballering v. All State Attorney Generals lemon law, et al., Civil No. 2:20-19969 MCA-LDW (D.N.J.), on December 18, 2020 ("New Jersey Action" "New Jersey Complaint"). [New JerseyAction, dkt. no. 1.] The New Jersey Complaint appears to be identical to the Pennsylvania Complaint. As of the date of this Order, litigation of the New Jersey Action was pending Ballering's payment of the filing fee or submission of an application to proceed in forma pauperis. See id., Clerk's Letter, filed 12/22/20 (dkt. no. 2).

STANDARD

"Federal courts can authorize the commencement of any suit without prepayment of fees or security by a person who submits an affidavit that demonstrates he is unable to pay." Smallwood v. Fed. Bureau of Investigation, CV. NO. 16-00505 DKW-KJM, 2016 WL 4974948, at *1 (D. Hawai`i Sept. 16, 2016) (citing 28 U.S.C. § 1915(a)(1)).

The Court subjects each civil action commenced pursuant to Section 1915(a) to mandatory screening and can order the dismissal of any claims it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners").

Id. at *3.

In addition, the following standards apply in the screening analysis:

Plaintiff is appearing pro se; consequently, the court liberally construes her pleadings. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) ("The Supreme Court has instructed the federal courts to liberally construe the 'inartful pleading' of pro se litigants." (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam))). The court also recognizes that "[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see alsoLopez v. Smith, 203 F.3d 1122, 1126 (9th. [sic] Cir. 2000).

Despite the liberal pro se pleading standard, the court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on its own motion. SeeOmar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) ("A trial court may dismiss a claim sua sponte under [Rule] 12(b)(6). Such a dismissal may be made without notice where the claimant cannot possibly win relief."); see alsoBaker v. Dir., U.S. Parole Comm'n, 916 F.2d 725, 727 (D.C. Cir. 1990) (holding that district court may dismiss cases sua sponte pursuant to Rule 12(b)(6) without notice where plaintiff could not prevail on complaint as alleged). . . . "Federal courts are courts of limited jurisdiction," possessing "only that power authorized by Constitution and statute." United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008) (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). The assumption is that the district court lacks jurisdiction. SeeKokkonen, 511 U.S. at 377. Accordingly, a "party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." Thompson

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