(PS) Core v. State of California Controllers Off, No. 2:2018cv00155 - Document 7 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 9/4/2018 VACATING all presently set dates and hearing in this case; STAYING all pleading, discovery, and motion practice in this action pending resolution of thes e findings and recommendations, with the exception of objections to the findings and recommendations and non-frivolous motions for emergency relief; and RECOMMENDING this action be dismissed without prejudice for lack of subject matter jurisdiction and the Clerk of Court be directed to close this case. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS A. CORE, 12 13 14 15 16 No. 2:18-cv-155-MCE-KJN PS Plaintiff, v. ORDER AND STATE OF CALIFORNIA CONTROLLERS OFF, FINDINGS AND RECOMMENDATIONS Defendant. 17 18 19 20 Plaintiff Thomas Core, proceeding without counsel, initially commenced this action on January 24, 2018, and ultimately paid the filing fee. (ECF No. 1.) A federal court has an independent duty to assess whether federal subject matter 21 jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v. 22 Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had a duty 23 to establish subject matter jurisdiction over the removed action sua sponte, whether the parties 24 raised the issue or not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). 25 The court must sua sponte dismiss the case if, at any time, it determines that it lacks subject 26 matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has original 27 jurisdiction over a civil action when: (1) a federal question is presented in an action “arising 28 under the Constitution, laws, or treaties of the United States” or (2) there is complete diversity of 1 1 2 citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). Liberally construed, plaintiff’s complaint alleges that the State of California Controller’s 3 Office (Division of Unclaimed Property) improperly took plaintiff’s gold stocks issued on 4 February 16, 1930 from a safe deposit box. To the extent that the complaint raises some type of 5 civil claim for conversion or misappropriation of property, such a claim would be a state law tort 6 claim over which this court does not have federal question jurisdiction. Nor does this court have 7 diversity of citizenship jurisdiction, because both plaintiff and defendant are citizens of 8 California. 9 Therefore, the court lacks subject matter jurisdiction over the action and recommends that 10 the case be dismissed. However, such dismissal should be without prejudice, allowing plaintiff to 11 pursue any potential claims in state court or another appropriate venue. 12 Accordingly, IT IS HEREBY RECOMMENDED that: 13 1. The action be DISMISSED WITHOUT PREJUDICE for lack of subject matter 14 jurisdiction. 15 2. The Clerk of Court be directed to close this case. 16 IT IS ALSO HEREBY ORDERED that: 17 1. All presently set dates and hearings in this case are VACATED. 18 2. All pleading, discovery, and motion practice in this action are STAYED pending 19 resolution of these findings and recommendations. With the exception of objections to 20 the findings and recommendations and non-frivolous motions for emergency relief, the 21 court will not entertain any motions or other filings until the findings and 22 recommendations are resolved. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 25 days after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 28 shall be served on all parties and filed with the court within fourteen (14) days after service of the 2 1 objections. The parties are advised that failure to file objections within the specified time may 2 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 3 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 4 5 IT IS SO ORDERED AND RECOMMENDED. Dated: September 4, 2018 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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