(PS) Gettings v. The American Racing Pigeon Union Inc., No. 2:2008cv01334 - Document 15 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 01/27/09 RECOMMENDING that the 5 Motion to Dismiss be granted; Motion referred to Judge Morrison C. England, Jr. Objections due within 20 days. (Manzer, C)
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(PS) Gettings v. The American Racing Pigeon Union Inc. Doc. 15 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 JIMMY GETTINGS, 10 11 12 No. CIV S-08-1334-MCE-CMK Plaintiff, vs. FINDINGS AND RECOMMENDATIONS THE AMERICAN RACING PIGEON UNION, INC., et al., 13 Defendants. 14 15 / Plaintiff, proceeding pro se, brings this civil action. Pending before the court is 16 defendants’ motion to dismiss (Doc. 5). Plaintiff filed an opposition to the motion (Doc. 12) and 17 defendants have filed a reply (Doc. 13). 18 I. 19 Plaintiff’s complaint names the following defendants: The American Racing 20 Pigeon Union, Inc.; All Current Officers, Directors, Former Officers and Directors in Office 21 1990-1993; and DOES 1-100. He alleges that, unbeknownst to him, he was expelled from The 22 American Racing Pigeon Union, Inc., (“AU”) on or about 1991, and that the expulsion was 23 published in the AU national newsletter. He alleges that from 1991 to 2004 he had no contact 24 with the AU, nor was he involved with any chapter of the AU. In 2005, plaintiff applied for 25 membership in a local club, associated with AU. In 2007, he was informed that he had been 26 expelled from the AU, and due to statements and other misdeeds by one or more local club BACKGROUND 1 Dockets.Justia.com 1 members, was denied membership. In addition, at a local club meeting, a letter from the AU 2 addressed to plaintiff, of which he had no prior knowledge, regarding his expulsion was read to 3 the general membership. On the basis of the facts alleged, plaintiff claims that the defendants, 4 including American Racing Pigeon Union, Inc., Does 1-25, the Officers and Board of Directors 5 (1990-1991), the Board of Directors (2007), and President Chuck Weaver, committed libel and 6 slander against the plaintiff, willfully and wantonly caused plaintiff injury and harm to his 7 character, failed to follow the American Racing Pigeon Union’s constitution and by-laws, all of 8 which caused him to lose income, and failed to disclose the employees’ annual salary pursuant to 9 the Oklahoma Code of Corporations. Plaintiff is demanding compensatory, general, special, 10 incidental, and punitive damages “all of which are to be determined from the evidence at trial.” 11 II. 12 The defendants move to dismiss plaintiff’s complaint pursuant to the Federal MOTION TO DISMISS 13 Rules of Civil Procedure, Rule 12(b)(1) and (6) for lack of subject matter jurisdiction and failure 14 to state a claim. The defendants argue that this court lacks subject matter jurisdiction over this 15 matter as plaintiff’s complaint presents no federal question and fails to meet the diversity 16 jurisdiction requirements. 17 A. SUBJECT MATTER JURISDICTION 18 Federal courts are courts of limited jurisdiction. That limited jurisdiction includes 19 cases involving diversity of citizenship, a federal question, or to which the United States is a 20 party. It is presumed that federal courts are without jurisdiction over civil actions “and the 21 burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. 22 Guardian Life Ins. Co, 511 U.S. 375, 376 (1994) (citing McNutt v. Gen. Motors Acceptance 23 Corp., 298 U.S. 178, 182-83 (1936)). Jurisdiction must generally be determined prior to a federal 24 court considering a case on its merits. See United States v. Larson, 302 F.3d 1016, 1019 (9th 25 Cir. 2002) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). 26 Federal district courts have original jurisdiction over “all civil actions arising 2 1 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Absent a 2 federal question, a case not involving the United States may properly proceed in federal court 3 only where there is complete diversity of citizenship between the parities and the amount in 4 controversy exceeds the sum or value of $75,000. See 28 U.S.C. § 1332. A plaintiff is required 5 to specifically plead the grounds for the court’s jurisdiction in his complaint. See Fed. R. Civ. 6 Proc. 8(a)(1), Century Sw. Cable Television, Inc. v. CIIF Assoc., 945 F.2d 803, 805 (9th Cir. 7 1994). 8 9 Here, plaintiff’s complaint fails to allege the basis for federal subject matter jurisdiction. Plaintiff fails to identify the basis for federal jurisdiction and fails to plead facts 10 supporting such jurisdiction. The Eastern District of California Local Rules require this 11 information to be plead in the first allegation. See Local Rule 8-204.1 12 allege this court’s jurisdiction in the first paragraph of his complaint, he fails to allege it at all. 13 Nowhere in his complaint does he assert the citizenship of himself or any of the defendants. 14 Therefore, plaintiff’s complaint should be dismissed for plaintiff’s failure to allege federal 15 subject matter jurisdiction. Plaintiff not only fails to 16 However, going beyond the face of the complaint, the defendants have alleged the 17 court lacks jurisdiction over this matter as there is no complete diversity of citizenship among the 18 parities. The defendants allege that plaintiff is a California citizen, a fact plaintiff does not 19 dispute. In addition, defendants have provided the court with the declaration of Karen Clifton- 20 Schuenemann, the Executive Director of the AU, providing evidence that at least three of the 21 current and/or past members of the Board of Directors of the Union, all of whom plaintiff alleges 22 are defendants in this matter, are citizens of California. Plaintiff does not identify these 23 defendants specifically by name, but they are identifiable by their position on the past and/or 24 25 26 1 Local Rule 8-204 provides: “When an affirmative allegation of jurisdiction is required pursuant to Fed. R. Civ. P. 8(a)(1), it (i) shall appear as the first allegation of any complaint . . . (ii) shall be styled “Jurisdiction,” (iii) shall state the claimed statutory or other basis of federal jurisdiction, and (iv) shall state the facts supporting such jurisdictional claim.” 3 1 present Board of Directors. 2 In response, plaintiff claims that the AU is an Oklahoma corporation, and this is 3 the basis for diversity jurisdiction. He also claims that because he has not completed discovery, 4 he cannot confirm who will be added as individual defendants.2 However, plaintiff does not 5 address the fact that in his complaint he names “all current officers, directors, former officers and 6 directors in office 1990-1993” as defendants (See Complaint, Doc. 1). Therefore, his claim that 7 he has not determined who he will add as defendants is not supported by his complaint. Some of 8 his claims are specifically against the individual members of the Board of Directors. (See, e.g., 9 Complaint at 6-7, “Count X, Count XI, Count XII). Therefore, the defendants, although not 10 identified by name in the complaint, are identifiable individuals. The defendants have identified 11 at least three such individuals, Philip Absit, Nickolas Corini, and Bill Barger, and have indicated 12 these individuals are from California. Plaintiff fails to dispute this evidence and/or produce 13 evidence that these individuals are citizens of another state. See Kokkonen, 511 U.S. 376 14 (plaintiff, as the party asserting jurisdiction, bears burden of proof that jurisdiction does in fact 15 exist). Diversity between plaintiff and the corporate defendant is not sufficient to provide this 16 court with jurisdiction. There must be diversity among all the parties to the action before this 17 court has proper jurisdiction. 18 As three individual Board members appear to be citizens of California, this court 19 would only have jurisdiction over this matter if plaintiff was a citizen of another state. Plaintiff’s 20 complaint fails to allege his citizenship, but it appears he is also a citizen of California.3 21 22 23 24 25 26 2 Plaintiff’s complaint does indicate DOE defendants. However, in a federal action based on diversity jurisdiction, the use of DOE defendants is generally disfavored as the joining of a DOE defendant may defeat the court’s jurisdiction. See e.g., Garter-Bare Co. v. Munsingwear, Inc., 650 F.2d 975, 981 (9th Cir. 1980). Although the use of DOE defendants is sometimes allowed, especially in federal question cases, here the individual board members who defeat diversity jurisdiction have been identified by the defense. 3 Plaintiff’s pleadings indicate he resides in Anderson, California. Residency, however, is not the same as citizenship. If plaintiff is in fact a citizen of another state, he may provide proof of such to the court in his objections to these findings and recommendations. 4 1 Therefore, complete diversity among all parties to this action does not exist, and this court does 2 not have jurisdiction over this case.4 The motion to dismiss should be granted on this basis. 3 B. 4 As discussed above, this court does not have jurisdiction to hear this case. Where 5 a federal court lacks jurisdiction, the court should not entertain a motion to dismiss for failure to 6 state a claim. See Ramming v. United States, 281, F.3d 158, 161 (5th Cir. 2001); Li v. Chertoff, 7 480 F. Supp. 2d 1172, 1176 (SD CA 2007). Accordingly, the court makes no findings as to the 8 defendants’ contention that plaintiff’s complaint fails to state a claim. 9 III. 10 11 FAILURE TO STATE A CLAIM CONCLUSION Based on the foregoing, the undersigned recommends that the defendants’ motion to dismiss (Doc. 5) be granted. 12 These findings and recommendations are submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court. The document should be captioned “Objections to Magistrate Judge's 16 Findings and Recommendations.” Failure to file objections within the specified time may waive 17 the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 DATED: January 27, 2009 20 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 4 Defendants also raise an issue with the amount in controversy. As the undersigned has found complete diversity among the parties to this action does not exist, the amount in controversy is irrelevant. 5
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