Mall v. Waibel et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Mark Anthony Mall,
Plaintiff,
v.
Adrienne Marie Waibel, et al.,
Defendants.
No. CV-25-04693-PHX-JJT
ORDER
At issue is pro se Plaintiff Mark Anthony Mall’s Request for Service by USPS
Certified Mail and Email Confirmation by the District Court (“Service Request”) (Doc. 4),
Application to Proceed in Forma Pauperis (“First Application”) (Doc. 7), and Application
to Proceed in District Court Without Prepaying Fees or Costs (“Second Application”)
(Doc. 8). The Court denies the Service Request as premature, grants the Second
Application, denies the First Application as moot, and dismisses Plaintiff’s underlying
Complaint to Quiet Title and for Declaratory Relief (Doc. 1, Compl.) for lack of subject-
matter jurisdiction with leave to amend.
I. IFP APPLICATIONS
The Court may authorize a party to commence a civil action without prepaying court
fees—to proceed in forma pauperis (“IFP”)—if the person submits an affidavit attesting to
their poverty. 28 U.S.C. § 1915(a)(1). Although a plaintiff seeking IFP status need not be
“absolutely destitute,” he or she “must allege poverty with some particularity, definiteness
and certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citation
Case 2:25-cv-04693-JJT Document 12 Filed 12/17/25 Page 1 of 4

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modified). “[T]here is no formula set forth by statute, regulation, or case law to determine
when someone is poor enough to earn IFP status.” Id. at 1235. The determination is within
the district court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir.
1991), rev’d on other grounds by 506 U.S. 194 (1993).
Here, Plaintiff submits two IFP Applications that contain mostly the same
information, except that the Second Application was prepared on the court form with
itemized expenses. On both, Plaintiff reports that his monthly expenses exceed his monthly
self-employment income. Plaintiff demonstrates an inability to pay filing fees, so the Court
will grant Plaintiff’s Second Application and deny the First Application as moot.
II. SUBJECT-MATTER JURISDICTION
For cases like this one in which a party is permitted to proceed IFP, 28 U.S.C.
§ 1915(e)(2) provides that a district court must screen that party’s complaint for, among other
things, whether the complaint states a claim for which relief may be granted. Lopez v. Smith,
203 F.3d 1122, 1127–29 (9th Cir. 2000). In addition to screening IFP complaints under
Section 1915, “[f]ederal courts have an independent obligation to ensure that they do not
exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional
questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson
v. Shinseki, 562 U.S. 428, 434 (2011). “If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
The plaintiff bears the burden of establishing the court’s jurisdiction over his claims.
Subject-matter jurisdiction can be established in one of two ways. First, the plaintiff may
assert that the defendants violated the Constitution, a federal law, or treaty of the United
States, i.e., the court’s “federal question” jurisdiction. See 28 U.S.C. § 1331. Alternatively,
a plaintiff may invoke the court’s “diversity” jurisdiction, which applies “where the matter
in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different States.” See 28 U.S.C. § 1332(a)(1). The plaintiff must state
the basis for the court’s jurisdiction in “a short and plain statement” in his pleadings. Fed. R.
Civ. P. 8(a)(1).
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Here, Plaintiff asserts1 that “[t]his Court has federal question jurisdiction pursuant to
28 U.S.C. § 1331 because this action arises under the laws of the United States, including
the interpretation and legal effect of a Federal Land Patent and federal supremacy
principles.” (Compl. at 2.) Therefore, the action must “arise[] under federal law either where
federal law creates the cause of action or where the vindication of a right under state law
necessarily turns on some construction of federal law.” Unite Here Local 30 v. Sycuan Band
of the Kumeyaay Nation, 35 F.4th 695, 702 (9th Cir. 2022) (citation modified).
Plaintiff sets forth a claim for “quiet title” under 28 U.S.C. § 1655, and “declaratory
judgment” under 28 U.S.C. §§ 2201–02. (Compl. at 4–5.) Neither of those statutes establish
federal question jurisdiction. First, Section 1655 “is a personal jurisdiction provision” that
sets forth notice procedures in a lien action but does not create an independent cause of
action. Cutlip v. Deutche Bank Nat’l Tr. Co., No. 15-cv-01345-BLF, 2015 LEXIS 114867,
at *6 (N.D. Cal. Aug. 28, 2015) (“Plaintiff must establish that the Court has subject-matter
jurisdiction over this dispute before he can invoke § 1655 . . .”). Second, Sections 2201 and
2202 are “procedural device[s] only and require[] a separate independent basis for
jurisdiction.” Unite Here Local 30, 35 F.4th at 702. These two statutes do not create an
independent cause of action, and Plaintiff identifies no state law that would require
construction of either of these statutes to vindicate his alleged property right.
Because the Court lacks subject-matter jurisdiction over this matter, the Court will
dismiss Plaintiff’s Complaint. It is possible that Plaintiff can amend these defects, so the
Court will grant him leave to amend no later than fourteen days from the date of this Order.
See Lopez, 203 F.3d at 1127–30.
III. SERVICE REQUEST
Plaintiff additionally requests that, pursuant to Federal Rule of Civil Procedure
5(b)(2)(C)–(D), the Court order that “Defendants serve all pleadings, motions, notices, and
other papers in this action upon Plaintiff by United States Postal Service (USPS) Certified
1 Even if Plaintiff stated that the Court had diversity jurisdiction, Plaintiff does not assert,
nor does this Court find, the requisite citizenship of the parties or the amount in controversy.
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Mail, Return Receipt Requested, sent to Plaintiff’s mailing address.” (Doc. 4 at 1.)
Plaintiff’s Service Request assumes that this Court has jurisdiction to enter such orders,
which it currently lacks. Therefore, the Service Request is premature and will be denied
without prejudice.
IT IS ORDERED granting Plaintiff’s Application to Proceed in District Court
Without Prepaying Fees or Costs (Doc. 8).
IT IS FURTHER ORDERED denying Plaintiff’s Application to Proceed in Forma
Pauperis (Doc. 7) as moot.
IT IS FURTHER ORDERED denying without prejudice Plaintiff’s Certified Mail
and Email Confirmation by the District Court (Doc. 4) as premature.
IT IS FURTHER ORDERED dismissing Plaintiff’s Complaint to Quiet Title and
for Declaratory Relief (Doc. 1) with leave to amend. Plaintiff may, within fourteen days of
the date of this Order, file an amended complaint. If Plaintiff fails to file an amended
complaint within fourteen days of the date of this Order, the Clerk of Court shall dismiss
this matter without further notice.
Dated this 17th day of December, 2025.
Honorable John J. Tuchi
United States District Judge
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