Gallegos v. Dunnion Law Firm, No. 1:2019cv01168 - Document 6 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS recommending that: 1) This action be dismissed, without prejudice and without leave to amend, based on lack of subject-matter jurisdiction; and 2) The Clerk of Court be directed to close this case.These findings and recom mendations are submitted to the district judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, Plaintiff may file written objecti ons with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). Order signed by Magistrate Judge Erica P. Grosjean on 9/23/2019. (Rooney, M)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GREG GALLEGOS, Plaintiff, 10 11 12 13 Case No. 1:19-cv-01168-LJO-EPG v. DUNNION LAW FIRM, Defendant. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITHOUT PREJUDICE, FOR LACK OF SUBJECT-MATTER JURISDICTION (ECF No. 1) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 14 15 16 Plaintiff, Greg Gallegos, is proceeding pro se in this action (ECF No. 1), and has 17 applied to proceed in forma pauperis (ECF No. 3). The Court recommends that this action be 18 dismissed without prejudice and without leave to amend for lack of subject-matter jurisdiction. 19 The Court must dismiss an action at any time if the Court determines that it lacks 20 subject-matter jurisdiction over the action. See Fed. R. Civ. P. 12(h)(3) (“If the court 21 determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 22 action.”); Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“[A] court may raise the 23 question of subject matter jurisdiction, sua sponte, at any time during the pendency of the 24 action, even on appeal.”). 25 There are two bases for federal subject-matter jurisdiction: federal question and 26 diversity. Under federal question jurisdiction, federal district courts “have original jurisdiction 27 over all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 28 U.S.C. § 1331. Under diversity jurisdiction, federal district courts “have original jurisdiction of 1 1 all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is 2 between . . . citizens of different states. . . .” 28 U.S.C. § 1332(a). Plaintiff, as the party 3 invoking federal jurisdiction, “has the burden of proving the actual existence of subject matter 4 jurisdiction.” Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). 5 Here, the Complaint (ECF No. 1) alleges a single claim against Dunion Law Firm. The 6 claim appears to arise out of the law firm’s representation of Plaintiff in a personal injury 7 action. The Complaint alleges: 8 9 10 11 12 13 The plaintiff herein is victem under stress that was defrauded of “equitable” compensation by Dunnion Law under set RULES of Law for injurys of 30 areas of plaintiffs single body in line with A.M.A. and Insurers standards, thus, [Defendants] are very guilty of Malice of Fore thought in Obstruction of Justice with criminal intent, because of bone fractures, brain trama, internal injurys, neck, spinal, shoulder, torso, hip and legs damages that creates medical costs for remainder of life. (ECF No. 1 at 3 (underlining omitted); see id. at 4.) The Complaint asserts that there is federal question jurisdiction under the provisions of 14 the U.S. Constitution. However, the factual allegations of the Complaint do not support that 15 assertion. The Complaint also does not include factual allegations that support a finding of 16 diversity jurisdiction. To the contrary, the complaint lists Plaintiff’s address as Fresno, 17 California and the defendant law firm’s address as “Montray,” California (which the Court 18 interprets as meaning Monterey, California), indicating that diversity jurisdiction is lacking. 19 (See ECF No. 1.) Thus, based on the facts alleged in the Complaint, the Court lacks subject- 20 matter jurisdiction over this case. 21 The Court provided Plaintiff with an opportunity to provide additional information 22 regarding his assertion of federal jurisdiction by issuing an order to show cause (“OSC”) 23 requiring Plaintiff to show cause why the case should not be dismissed for lack of subject- 24 matter jurisdiction. (ECF No. 4.) In his response to the OSC, Plaintiff asserts that there is 25 jurisdiction under the U.S. Constitution and makes clear that he is not claiming diversity 26 jurisdiction, and is only claiming federal question jurisdiction: 27 28 S.O.F. of Jurisdiction is SUBJECT MATTER already stated clearly as #470 Federal Constitution LAW of U.S. Burden of Proof has been stated on Cival Cover sheet sent as #470 in V. ORIGIN: Original Proceeding answered already. Your 8-28-19 [OSC], p.2, line 12 is repitition. I did NOT state DIVERSITY 2 1 2 3 4 whatsoever, only FEDERAL, which can only make moot your lines 13, 14 and 15s LACKING point. Facts are DIVERSITY was never the issue. Case is FEDERAL. Above shows cause why case must NOT end. (ECF No. 5 (underlining omitted).) Neither the Complaint nor the additional information provided by Plaintiff in his 5 response to the OSC establishes federal question jurisdiction. Plaintiff’s assertion that he is 6 bringing his claim under the U.S. Constitution is insufficient to establish federal question 7 jurisdiction because the Complaint does not include a claim for violation of a particular 8 provision of the Constitution. See 28 U.S.C. § 1331. The Complaint also does not include a 9 claim for violation of a federal law or treaty of the United States. See id. To the contrary, 10 Plaintiff’s claim against the defendant law firm appears to be a state law claim for fraud or 11 malpractice arising out of the defendant’s representation of Plaintiff in a personal injury action. 12 (See ECF No. 1.) Plaintiff must pursue his state law claim in state court, not federal court. 13 Accordingly, the Court RECOMMENDS that: 1. This action be dismissed, without prejudice and without leave to amend, based 14 on lack of subject-matter jurisdiction; and 15 2. The Clerk of Court be directed to close this case. 16 17 These findings and recommendations are submitted to the district judge assigned to the 18 case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one days after 19 being served with these findings and recommendations, Plaintiff may file written objections 20 with the court. Such a document should be captioned “Objections to Magistrate Judge’s 21 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 22 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 23 834, 839 (9th Cir. 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 25 26 IT IS SO ORDERED. Dated: September 23, 2019 /s/ UNITED STATES MAGISTRATE JUDGE 27 28 3

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