(PS) Collins v. Severson and Werson, No. 2:2018cv02279 - Document 25 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/27/18 DENYING 17 Ex Parte Application to remove a state case to District Court; and RECOMMENDING that the 12 Motion to Dismiss be granted and this action be dismissed. Referred to Judge Kimberly J. Mueller with any Objections to F&Rs due within 14 days. All pleading, discovery, and motion practice in this action are STAYED pending resolution of the findings and recommendations. (Benson, A.)
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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 DENNIS COLLINS, 12 No. 2:18-cv-02279-KJM-CKD (PS) Plaintiff, 13 v. 14 ORDER AND FINDINGS AND RECOMMENDATIONS SEVERSON AND WERSON, 15 Defendant. 16 Presently pending before the court is defendant’s motion to dismiss. (ECF No. 12.) 17 18 Plaintiff filed an opposition, defendant replied, and plaintiff responded. (ECF Nos. 20, 22, 23.) 19 Plaintiff has also filed an ex parte application for an order to remove a case from state court to 20 federal court. (ECF No. 17.) These matters came on for hearing before the undersigned on 21 November 21, 2018 at 10:00 a.m.1 At the hearing, plaintiff Dennis Collins appeared on his own 22 behalf, and Megan F. Clark appeared telephonically on behalf of defendant. Upon review of the 23 documents in support and opposition, upon hearing the arguments of counsel, and good cause 24 appearing therefor, THE COURT FINDS AS FOLLOWS: 25 I. Plaintiff, who proceeds pro se, initiated this action on August 13, 2018, and paid the 26 27 28 BACKGROUND 1 This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 1 filling fee. (ECF No. 1.) In the complaint, plaintiff brings three claims against defendant: (1) 2 fraud; (2) quiet title; and (3) and a request that this court prevent defendant from filing an action 3 for expungement in state court. (See generally, ECF No. 1.) Plaintiff asserts that his claims are 4 brought pursuant to 28 U.S.C. §§ 1331 and 1332, as well as Article III of the United States 5 Constitution. (Id. at 2–3.) 6 According to the complaint, plaintiff brings this action based upon fraud and “illegal 7 tactics being used by the law firm and lawyers whom are working in concert together, for/with the 8 defendant SEVERSON and WERSON, against the plaintiff, by threatening to file suit to expunge 9 plaintiff[’s] claims, and then bill the costs of ‘lawyers fees’ to plaintiff, even though the Supreme 10 Court of California has a pending case which the law firm has failed to timely respond and failed 11 to answer at all.” (Id. at 5.) The complaint further asserts that defendant erroneously claims title 12 to a property located at 7450 Cardwell Ave., Orangevale, California 95662 that plaintiff allegedly 13 rightfully owns. (Id. at 3, 12.) 14 On October 12, 2018, defendant moved to dismiss this matter pursuant to Federal Rules of 15 Civil Procedure 12(b)(1) and (6); or in the alternative for a more definite statement pursuant to 16 Rule 12(e). (ECF No. 12.) 17 Subsequently, plaintiff filed an ex parte application for an order to remove a state case to 18 federal district court. (ECF No. 17). According to the application, plaintiff seeks the removal of 19 a state action, in which he is also the plaintiff. (See ECF No. 17 at 1-5; see also Collins v. 20 Nationstar Mortg., LLC, No. C078530, 2018 WL 2437527 (Cal. Ct. App. May 31, 2018), reh’g 21 denied (June 20, 2018), review denied (Aug. 15, 2018).) 22 II. 23 LEGAL STANDARDS Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 24 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 25 claims alleged in the action. Such a motion may be on factual information provided beyond the 26 pleadings. “Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a 27 complaint’s jurisdictional allegations despite their formal sufficiency, and in so doing rely on 28 affidavits or any other evidence properly before the court.” St. Clair v. City of Chico, 880 F.2d 2 1 199, 201 (9th Cir. 1989). 2 Additionally, a federal court has an independent duty to assess whether federal subject 3 matter jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. 4 Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had 5 a duty to establish subject matter jurisdiction over the removed action sua sponte, whether the 6 parties raised the issue or not”). The court must sua sponte dismiss the case if, at any time, it 7 determines that it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). 8 III. 9 10 DISCUSSION A. Subject Matter Jurisdiction A federal district court generally has original subject matter jurisdiction over a civil action 11 when: (1) a federal question is presented in an action “arising under the Constitution, laws, or 12 treaties of the United States” or (2) there is complete diversity of citizenship and the amount in 13 controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). While plaintiff purports to bring 14 claims under both federal question and diversity jurisdiction (ECF No. 1 at 3), he has failed to 15 establish that this court has jurisdiction over his complaint. 16 First, as the Ninth Circuit has observed, “[a] case arises under federal law within the 17 meaning of § 1331 . . . if a well-pleaded complaint establishes either that federal law creates the 18 cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a 19 substantial question of federal law.” Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1219 20 (9th Cir. 2009) (internal citations and quotation marks omitted.) 21 Here, the complaint’s specifically enumerated claims are state law causes of action: 22 common law fraud, quiet title, and a request regarding what defendant may file in state court. 23 (ECF No. 1 at 5, 12, 14.) While the complaint makes a few references to the United States 24 Constitution and federal statutes—Article I and III of the United States Constitution, 28 U.S.C. § 25 2409a, 28 U.S.C. § 2410(b), and 15 U.S.C. §§1, 2 (see ECF No. 1 at 2-3, 6, 15, 17)—simply 26 referencing the Constitution and federal law is not enough to establish that plaintiff’s right to 27 relief depends on the resolution of a substantial question of federal law. Indeed, the gravaman of 28 the complaint is that defendant allegedly committed fraud and misused state courts, and thereby 3 1 interfered with plaintiff’s alleged rightful ownership of a piece of land in California. (See 2 generally, ECF No. 1.) The complaint does not establish that plaintiff’s claims implicate any 3 federal issues, let alone “significant federal issues” so as to invoke this court’s subject matter 4 jurisdiction. See Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 212 5 (2005). 6 Second, diversity of citizenship jurisdiction, “permitting federal district court jurisdiction 7 over suits for more than [$75,000] ‘between . . . citizens of different States,’ . . . applies only to 8 cases in which the citizenship of each plaintiff is diverse from the citizenship of each defendant.” 9 Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (citing 28 U.S.C. § 1332(a)). 10 According to the complaint, both plaintiff and defendant are California citizens, and 11 therefore, they are not diverse from one another. (See ECF No. 1 at 3-4; 28 U.S.C. § 1332(a).) 12 Nonetheless, plaintiff asserted at the hearing that because defendant is a corporation, it is a citizen 13 of every state, and therefore diverse from him. This is incorrect. 14 “For diversity purposes, a corporation . . . is deemed to be a citizen of ‘every State and 15 foreign state by which it has been incorporated and of the State or foreign state where it has its 16 principal place of business. . . .’” Rouse v. Wachovia Mortg., FSB, 747 F.3d 707, 709 (9th Cir. 17 2014) (citing 28 U.S.C. § 1332(c)(1); Wachovia Bank v. Schmidt, 546 U.S. 303, 306 (2006)). 18 Here, defendant Severson & Werson is incorporated with the Californian Secretary of State under 19 number C1089079, with its address of record as One Embarcadero Center, 26th Fl., San 20 Francisco, CA 94111. See https://businesssearch.sos.ca.gov/ (last visited November 21, 2018). 21 Clearly, Severson & Werson is a citizen of California for the purposes of 28 U.S.C. § 1332, and 22 thus, there is no diversity of citizenship between plaintiff and defendant. 23 24 Therefore, this matter is subject to dismissal because the court lacks subject matter jurisdiction over plaintiff’s claims. See 28 U.S.C. §§ 1331, 1332(a). 25 B. Sufficiency of Claims 26 The court expresses no opinion regarding the merits of plaintiff’s state law claims, and 27 whether plaintiff has properly stated any such claim. Instead, the undersigned declines to 28 exercise supplemental jurisdiction over the state law claims since plaintiff has failed to establish 4 1 any federal claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise 2 supplemental jurisdiction over a claim . . . if the district court has dismissed all claims over which 3 it has original jurisdiction”); see also Acri v. Varian Associates, Inc., 114 F.3d 999, 1000–01 (9th 4 Cir. 1997) (“‘in the usual case in which all federal-law claims are eliminated before trial, the 5 balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state- 6 law claims’”), quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988). 7 C. 8 The court must construe a pro se pleading liberally to determine if it states a claim and, 9 Leave to Amend prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity 10 to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. 11 Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). Here, however, plaintiff’s claims are 12 subject to dismissal for a lack of subject matter jurisdiction and not for failure to state a claim. 13 Plaintiff could not cure this jurisdictional defect by pleading additional consistent facts as the 14 complaint concerns issues of state law, and there cannot be diversity of citizenship between 15 plaintiff and defendant. Therefore, leave to amend would be futile. 16 D. Removal of State Court Case 17 Finally, plaintiff also seeks to remove a case from state court in which he is the plaintiff. 18 (See ECF No. 17 at 1-5; see also Collins, 2018 WL 2437527.) A “civil action brought in a State 19 court . . . may be removed by the defendant or the defendants, to the district court of the United 20 States for the district and division embracing the place where such action is pending.” 28 U.S.C. 21 § 1441. Thus, plaintiff may not remove the case he references because he is the plaintiff, and not 22 the defendant, in that matter. 23 IV. CONCLUSION 24 Accordingly, IT IS HEREBY RECOMMENDED that: 25 1. Defendant’s motion to dismiss (ECF No. 12) be GRANTED. 26 2. The action be DISMISSED without leave to amend for lack of federal subject matter 27 28 jurisdiction. 3. The Clerk of Court be directed to close this case. 5 1 IT IS ALSO HEREBY ORDERED that 2 1. Plaintiff’s ex parte application for an order to remove a state case to federal district 3 4 court (ECF No. 17) is DENIED. 2. All pleading, discovery, and motion practice in this action are STAYED pending 5 resolution of the findings and recommendations. With the exception of objections to 6 the findings and recommendations and any non-frivolous motions for emergency 7 relief, the court will not entertain or respond to any motions and other filings until the 8 findings and recommendations are resolved. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 11 days after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 shall be served on all parties and filed with the court within fourteen (14) days after service of the 15 objections. The parties are advised that failure to file objections within the specified time may 16 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 17 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 18 Dated: November 27, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 14/ps.18-2279.collins.order MTD 25 26 27 28 6