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 2021-10

Ronald Livingston v. Louis Dejoy ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        OCT 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD LIVINGSTON,                              No. 21-55114
Plaintiff-Appellant,            D.C. No. 2:20-cv-06975-MWF-JPR
v.
MEMORANDUM*
LOUIS DeJOY, Postmaster General; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted October 12, 2021**
Before:      TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Ronald Livingston appeals pro se from the district court’s judgment
dismissing his action arising out of an Equal Employment Opportunity
Commission hearing. We have jurisdiction under
    28 U.S.C. § 1291
    . We review de
novo a sua sponte dismissal for lack of subject matter jurisdiction. Scholastic Ent.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Inc. v. Fox Ent. Grp., Inc.,
    336 F.3d 982
    , 985 (9th Cir. 2003). We affirm.
The district court properly dismissed Livingston’s action without prejudice
because Livingston failed to allege a federal question or complete diversity of
citizenship in his complaint. See 28 U.S.C §§ 1331, 1332; Rivet v. Regions Bank
of La.,
    522 U.S. 470
    , 475 (1998) (to establish jurisdiction under § 1331, a federal
question must be “presented on the face of the plaintiff’s properly pleaded
complaint” (citation and internal quotation marks omitted)); Caterpillar Inc. v.
Lewis,
    519 U.S. 61
    , 68 (1996) (§ 1332 applies only when “the citizenship of each
plaintiff is diverse from the citizenship of each defendant”). Contrary to
Livingston’s contention, the district court did not have subject matter jurisdiction
pursuant to United States Postal Service Publication 133.
The district court did not err in declining to grant Livingston’s motions for
default judgment because the district court had determined that it lacked subject
matter jurisdiction over the action. See Speiser, Krause & Madole v. Ortiz,
    271 F.3d 884
    , 886 (9th Cir. 2001) (standard of review); Tuli v. Republic of Iraq (In re
Tuli),
    172 F.3d 707
    , 712 (9th Cir. 1999) (explaining that a district court has an
affirmative duty to determine whether it has subject matter jurisdiction prior to
entering default judgment, whether or not the party against whom default judgment
is sought has appeared).
Livingston’s motion to continue to use the mailing process (Docket Entry
2                                    21-55114
No. 5) is granted.
AFFIRMED.
3   21-55114