(PS) Lewis v. Storey, No. 2:2019mc00023 - Document 2 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/21/2019 RECOMMENDING that this action be dismissed and the Clerk be ordered to close the case. Referred to District Judge Troy L. Nunley. Objections to F&Rs due within 14 days. (Zignago, K.)

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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 YOLANDA LEWIS, 12 No. 2:19-mc-00023-TLN-KJN Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 ANGELA FOSTER STOREY, 15 Respondent. 16 This is a miscellaneous action in which petitioner Yolanda Lewis, proceeding without 17 18 counsel, filed a petition against respondent Angela Foster Storey, to “perpetuate absolute 19 testimony.” (ECF No. 1 at 1.) As discussed below, the court lacks subject matter jurisdiction 20 over the petition. A federal court is a court of limited jurisdiction, and may adjudicate only those cases 21 22 authorized by the Constitution and federal statute. See Kokkonen v. Guardian Life Ins. Co., 511 23 U.S. 375, 377 (1994). A district court has a duty to establish subject matter jurisdiction 24 independent of whether the parties raise the issue or not. See United Inv'rs Life Ins. Co. v. 25 Waddell & Reed Inc., 360 F.3d 960, 966–67 (9th Cir. 2004). The court must sua sponte dismiss 26 the case if, at any time, it determines that it lacks subject matter jurisdiction. Fed. R. Civ. P. 27 12(h)(3). 28 //// 1 1 “Under the substantiality doctrine, the district court lacks subject matter jurisdiction when 2 the question presented is too insubstantial to consider.” Cook v. Peter Kiewit Sons Co., 775 F.2d 3 1030, 1035 (9th Cir. 1985) (citing Hagans v. Lavine, 415 U.S. 528, 536-39 (1974)). “The claim 4 must be ‘so insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise 5 completely devoid of merit as not to involve a federal controversy within the jurisdiction of the 6 District Court, whatever may be the ultimate resolution of the federal issues on the merits.’” Id. 7 (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974)); see also Apple v. 8 Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (“a district court may, at any time, sua sponte dismiss a 9 complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of 10 Civil Procedure when the allegations of a complaint are totally implausible, attenuated, 11 unsubstantial, frivolous, devoid of merit, or no longer open to discussion.”). 12 Here, the one-page petition includes numerous attachments alleging that respondent 13 violated the Fair Debt Collection Practices Act; trespassed on petitioner’s property; fraudulently 14 used the United States Postal Service; and engaged in racketeering, international terrorism, 15 identity theft, bribery, conspiracy, and attempted murder, ostensibly due to respondent’s 16 involvement in a separate state court unlawful detainer action filed against petitioner. (See 17 generally ECF No. 1 at 1, 4-8, 17-22, 66-75.) Respondent is an attorney and represents Thomas 18 McDowell, one of the parties in the state action. (Id. at 4.) Petitioner appears to reside at 4638 19 Batten Way, San Jose, California 95135, the property at issue in the unlawful detainer action. 20 (Id.) The documents suggest that on or about April 17, 2017, Mr. McDowell purchased the 21 property at a foreclosure sale; recorded the deed with the Office of the County Clerk-Recorder in 22 the County of Santa Clara; and filed an unlawful detainer action in state court, after several 23 attempts to evict petitioner from the property. (Id. at 4-5, 10-12.) 24 Liberally construed, the petition was plainly filed to express petitioner’s dissatisfaction 25 with the state unlawful detainer action, which cannot be removed or heard in this court. See 26 Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (“Federal jurisdiction cannot be predicated on 27 an actual or anticipated defense.”) The court also finds that the allegations of the petition are 28 implausible, unsubstantial, frivolous, and devoid of merit. Therefore, the court sua sponte 2 1 concludes that this action should be dismissed for lack of subject matter jurisdiction pursuant to 2 the substantiality doctrine. Although the court ordinarily liberally grants a pro se litigant leave to 3 amend her complaint to correct pleading deficiencies, the nature of the allegations here suggests 4 that leave to amend would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th 5 Cir. 1996). 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. The action be DISMISSED for lack of subject matter jurisdiction. 8 2. The Clerk of Court be ordered to close this case. 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 19 IT IS SO RECOMMENDED. Dated: February 21, 2019 20 21 22 23 24 25 26 27 28 3

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