Smith v. Seene ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SMITH, Case No.: 20CV173 GPC(JLB) 12 Plaintiff, ORDER SUA SPONTE DISMISSING 13 v. COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION 14 KENNETH J. SENNE, 15 Defendant. 16 17 Plaintiff Michael Smith, proceeding pro se, filed a complaint alleging five counts 18 alleging violations of California law. (Dkt. No. 1, Compl.) Plaintiff alleges the ourt has 19 federal question jurisdiction. (Id. ¶ 1.) 20 Discussion 21 The federal court is one of limited jurisdiction and the burden rests on the party 22 asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 23 (1994). It possesses only that power authorized by the Constitution or a statute. See 24 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). It is constitutionally 25 required to raise issues related to federal subject matter jurisdiction, and may do so sua 26 sponte. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–94 (1998); see Nevada v. 27 Bank of America Corp., 672 F.3d 661, 673 (9th Cir. 2012) (it is well established that “a 28 court may raise the question of subject matter jurisdiction, sua sponte, at any time during 1 || the pendency of the action, even on appeal.”) Accordingly, federal courts are under a 2 || continuing duty to confirm their jurisdictional power and are “obliged to inquire sua 3 || sponte whenever a doubt arises as to [its] existence... .” Mt. Healthy City Sch. Dist. Bd. 4 || of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations omitted). “Ifthe court determines 5 || at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” 6 || Fed. R. Civ. P. 12(h)(3). 7 There are two bases for federal subject matter jurisdiction: (1) federal question 8 || jurisdiction under 28 U.S.C. § 1331; and (2) diversity jurisdiction under 28 U.S.C. § 9 || 1332. A district court has federal question jurisdiction in “all civil actions arising under 10 Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. 11 Here, the complaint alleges federal question jurisdiction and generally cites to 28 12 ||/U.S.C. § 1343(a)(4); 42 U.S.C. § 1983 and 18 U.S.C. § 1621(1). (Dkt. No. 1, Compl. {ff 13 || 1, 2, 3.) Yet, the complaint does not assert any causes of action with supporting facts 14 || under these federal statutes. On the caption of the complaint, Plaintiff lists five causes of 15 || action for two counts of breach of fiduciary duty, violation of California Probate Codes 16 || and unlawful detainer codes, violation of California Welfare & Institution Code section 17 || 15627.5, and fraud on the court. Because Plaintiff has failed to demonstrate the Court 18 federal question jurisdiction, the Court must dismiss the complaint. See Fed. R. Civ. 19 ||P. 12(h)(3). 20 Conclusion 21 For the reasons set forth above, the Court sua sponte DISMISSES the Complaint 22 || without prejudice for lack of subject matter jurisdiction. The Court GRANTS Plaintiff 23 || thirty (30) days from the filed date of the order to file an amended complaint curing the 24 || deficiencies of pleading identified above. 25 IT IS SO ORDERED. 26 Dated: January 29, 2020 2 27 Hon. athe Ck 28 United States District Judge