(PS) George v. Sohal ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE E. GEORGE, No. 2:22–cv–564–KJM–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR LACK OF 13 v. SUBJECT MATTER JURISDICTION 14 TRANS SOHAL and RAJ FINAF (ECF No. 2.) 15 DefendantS. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis.1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of an 19 action “without prepayment of fees or security” by a person who is unable to pay such fees). The 20 court finds that it lacks federal subject matter jurisdiction over the action. See United Investors 21 Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (noting the federal 22 court’s independent duty to ensure it has subject matter jurisdiction in the case). Accordingly, the 23 court recommends that the action be dismissed without prejudice, and that plaintiff’s application 24 to proceed in forma pauperis be denied as moot. 25 /// 26 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 27 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Resolution of dispositive matters by a magistrate judge are to be filed as findings and recommendations. See 28 E.D. Cal. L.R. 304. 1 Legal Standards 2 Federal courts are courts of limited jurisdiction and lack inherent or general subject matter 3 jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Federal courts can 4 adjudicate only those cases which the United States Constitution and Congress authorize them to 5 adjudicate. Id. To invoke a federal court’s subject-matter jurisdiction, a plaintiff needs to 6 provide only “a short and plain statement of the grounds for the court's jurisdiction.” Fed. R. Civ. 7 P. 8(a)(1). Eastern District of California Local Rule 204 additionally requires that the complaint 8 “state the claimed statutory or other basis of federal jurisdiction” along with “the facts supporting 9 such jurisdictional claim.” The court must dismiss a case if, at any time, it determines that it 10 lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has 11 jurisdiction over a civil action when: (1) a federal question is presented in an action “arising 12 under the Constitution, laws, or treaties of the United States” or (2) there is complete diversity of 13 citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). 14 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & fn.7 15 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 16 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it 17 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31 18 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be 19 given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 20 Analysis 21 “[A] case ‘arises under’ federal law either where federal law creates the cause of action or 22 ‘where the vindication of a right under state law necessarily turn[s] on some construction of 23 federal law.’ ” Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) 24 (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). 25 The presence or absence of federal question jurisdiction is governed by the “well-pleaded 26 complaint rule.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under the well-pleaded 27 complaint rule, “federal jurisdiction exists only when a federal question is presented on the face 28 of the plaintiff's properly pleaded complaint.” Id. 1 Here, plaintiff’s complaint alleges defendant employers discriminated and retataliated 2 against plaintiff after plaintiff attempted to gain employment with another trucking company. 3 (See ECF No. 1 at 1-2, 4-12.) Additionally, the complaint alleges defendants placed frightening 4 information in plaintiff’s truck to discriminate against plaintiff’s Christian religious beliefs. (See 5 Id. at 6-7.) The complaint asserts four causes of action. The first two, “Discrimination and 6 Disparate Treatment” and “Discrimination Based Upon Retaliation and Religious Preferences,” 7 are brought under California’s Fair Employment and Housing Act (“FEHA”). (See ECF No. 1 at 8 7-9, citing Cal. Gov. Code § § 12940, et al.) Plaintiff’s third cause of action, “Discrimination and 9 Breach of the Implied Covenant of Good Faith and Fair Dealing,” appears to assert a California 10 common-law contract action. (See Id. at 9-11.) Plaintiff’s fourth cause also appears based on 11 state law; it is entitled “Discrimination Based on Adverse Employment Action and Slander,” and 12 cites a provision of California law regarding damages. (See Id. at 11-12.) Throughout the 13 complaint there are additional citations to other statutes, all California based. (See Id.) Simply, it 14 appears plaintiff’s intent is to rely almost exclusively on California—not federal—law. Thus, as 15 written, the complaint fails to allege claims indicating the court has federal question jurisdiction. 16 Although a federal court can exercise supplemental jurisdiction over state law claims, this occurs 17 when there also exists a federal claim providing the court with federal question jurisdiction. See 18 28 U.S.C. § 1367(a); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 19 2001) (“[W]here there is no underlying original federal subject matter jurisdiction, the court has 20 no authority to adjudicate supplemental claims under § 1367”). 21 The court may obtain subject matter jurisdiction through Section 1332. However, plaintiff 22 does not allege diversity jurisdiction, and the complaint alleges all parties are citizens of 23 California. (See ECF No. 1 at 2.) Thus, subject matter jurisdiction cannot lie pursuant to Section 24 1332. See Lincoln Property Co. v. Roche, 546 U.S. 81, 82 (2005) (complete diversity exists 25 when plaintiffs and defendants hail from different states); see also Kanter v. Warner–Lambert 26 Co., 265 F.3d 853, 857-858 (9th Cir. 2001) (“[T]he party asserting diversity jurisdiction bears the 27 burden of proof.”). 28 /// 1 Finally, the court notes the complaint, in one conclusory sentence, asserts this court has 2 jurisdiction over this action based on the United States Civil Rights Act of 1991. (ECF No. 1 at 3 3.) However, plaintiff does not specify which title applies to this case, and otherwise never 4 mentions this Act again.2 (See Id. at 3, 7-12.) Given that the Federal and Local Rules require 5 more than conclusory allegations, the undersigned’s finds this statement insufficient to satisfy 6 federal question jurisdiction. See Fed. R. Civ. P. 8(a)(1); Local Rule 204 (requiring a complaint 7 “state the claimed statutory or other basis of federal jurisdiction” along with “the facts supporting 8 such jurisdictional claim.”). 9 In this case, the court plainly does not have federal question jurisdiction over the action, 10 because plaintiff does not assert any federal claims against defendants. Furthermore, there is no 11 diversity of citizenship jurisdiction, because all parties reside in California. Therefore, the court 12 recommends that the action be dismissed without prejudice for lack of federal subject matter 13 jurisdiction. To be clear, this disposition would be without prejudice, leaving plaintiff with the 14 ability to pursue his FEHA, contract, and slander claims in California state court. 15 RECOMMENDATIONS 16 Accordingly, IT IS HEREBY RECOMMENDED that: 17 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be DENIED AS MOOT; 18 2 If plaintiff intends to allege a federal discrimination claim, it would likely be under Title VII, 19 which makes it unlawful for an employer to discriminate based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). The complaint does not reference Title VII, and plaintiff 20 relies solely on state law. However, the undersigned recognizes that, generally speaking, it is common for Title VII and FEHA claims to appear part and parcel. Given that plaintiff proceeds 21 without counsel, it is generally permissible to allow for amendment of the complaint. However, any Title VII claim would fail because plaintiff did not file this action within 90 days 22 of receiving his right-to-sue letter from the Equal Employment Opportunity Commission 23 (“EEOC”). See 42 U.S.C. § 2000e-5(f)(1) (a plaintiff has 90 days after receipt of an EEOC right- to-sue letter to commence a civil action based on the charges filed). The complaint alleges 24 plaintiff received his right-to-sue letter from the EEOC on March 29, 2021. (ECF No. 1 at 2-3.) Therefore, plaintiff had until June 27, 2021 to file any Title VII claims, and this case was not filed 25 until March 29, 2022. Missirlian v. Huntington Memorial Hospital, 662 F.2d 546, 549 (9th Cir. 1981) (finding that failure to commence a discrimination lawsuit within the 90-day period is 26 grounds for dismissal); see, e.g., Ramos v. Work World America, Inc., No. 2:21-cv-01490-JAM- 27 JDP, 2022 WL 286612 (E.D. Cal. Jan. 31, 2022) (dismissing a case involving Title VII claims for failure to comply with the 90-day requirement). Any leave to amend to add a Title VII claim 28 would therefore be futile. Cahill, 80 F.3d at 339. ] 2. The action be DISMISSED WITHOUT PREJUDICE for lack of subject matter 2 jurisdiction; and 3 3. The Clerk of Court be directed to CLOSE this case. 4 || These findings and recommendations are submitted to the United States District Judge assigned to 5 || the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after 6 || being served with these findings and recommendations, plaintiff may file written objections with 7 || the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 8 | Recommendations.” Plaintiff is advised that failure to file objections within the specified time 9 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 10 | (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 11 || Dated: April 12, 2022 Aectl Aharon 13 KENDALL J. NE geor.564 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28