United States District Court, S.D. California
October 6, 2005.
CORNELIUS OGUNSALU, Plaintiff,
MOHAN S. NAIR, M.D., BERRINGTON PSYCHIATRIC CENTER, SHAWN M. LARSEN, ATTY., Defendants.
The opinion of the court was delivered by: IRMA GONZALEZ, District Judge
ORDER (1) TO SHOW CAUSE WHY THIS MATTER SHOULD NOT BE DISMISSED
FOR LACK OF SUBJECT MATTER JURISDICTION; and (2) STAYING ALL
PENDING MOTIONS INCLUDING THE DISCOVERY MOTION; and (3) VACATING
THE NOVEMBER 7TH HEARING FOR PLAINTIFF'S MOTION FOR DEFAULT
JUDGMENT AND DEFENDANT'S MOTION TO DISMISS
Currently pending before the Court are Cornelius Ogunsalu's
("plaintiff") ex parte motion to amend the Complaint (Doc. No.
31); plaintiff's ex parte motion for discovery (Doc. No. 33);
plaintiff's motion for default judgment against defendants Mohan
S. Nair and Barrington Psychiatric Center (Doc. No. 34);
plaintiff's ex parte motion to subpoena process server Mike
Medrano (Doc. No. 39); plaintiff's ex parte motion requesting
sanctions against Jones Day (Doc. No. 40); and plaintiff's motion
for default judgment against defendant Shawn M. Larsen (Filed on
October 5, 2005). Also before the Court is Shawn M. Larsen's
("defendant") motion to dismiss the complaint (Doc. No. 36).
Plaintiff's complaint seeks "damages under the First Amendment
of the United States Constitution and Article I, Section 2(a) of the California
Constitution" and for "medical malpractice under the applicable
federal (United States) and state (California) statutes and
codes." Compl., 2. Plaintiff's complaint questions whether an
expert who "conducted an independent psychological evaluation on
plaintiff and maliciously rendered an opinion of numerous
defamatory falsehoods . . . could claim a constitutional
privilege against liability." Id.
Federal courts have limited jurisdictional power and,
therefore, are under a continuing duty to confirm their subject
matter jurisdiction over a particular case before reaching the
merits of a dispute. See Steel Co. v. Citizens for a Better
Environ., 523 U.S. 83, 94 (1998); Mt. Healthy City Sch. Dist.
Bd. of Educ v. Doyle, 429 U.S. 274, 278 (1977). "Without
jurisdiction the court cannot proceed at all in any cause.
Jurisdiction is the power to declare the law, and when it ceases
to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.'" Steel Co.,
523 U.S. at 94 (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506,
514 (1868)). Accordingly, this Court can inquire into its
jurisdictional power sua sponte when a doubt arises as to its
existence. Mt. Healthy, 429 U.S. at 278.
Original jurisdiction in federal court is limited to federal
question and diversity actions. Exxon Mobil Corp. v. Allapattah
Serv., Inc., 125 S. Ct. 2611, 2616 (2005). Federal question
jurisdiction includes only cases "arising under the Constitution,
laws, or treaties of the United States." 28 U.S.C. § 1331.
Federal diversity jurisdiction requires: (1) complete diversity
among opposing parties; and (2) an amount in controversy
exceeding $75,000, exclusive of interest and costs.
28 U.S.C. § 1332. Additionally, "a federal law defense to a state-law claim
does not confer jurisdiction on a federal court." Valles v. Ivy
Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005).
Thus, while the complaint refers to the First Amendment and
other federal statutes, it is unclear whether federal
jurisdiction exists. First, Plaintiff's claims for negligent and
intentional infliction of emotional distress, libel, and medical
malpractice are apparently entirely state law. Compl. 20-22. Second, the issue of whether expert testimony is
protected by the first amendment goes to a federal defense, and
not a federal question. Third, it is clear from the complaint
that federal diversity jurisdiction is unavailable because all
parties are from California. Compl. 3-4.
Accordingly, IT IS HEREBY ORDERED that the plaintiff shall
file a memorandum no later than the close of business day on
Monday, October 24, 2005, setting forth the basis for the
Court's federal question jurisdiction citing appropriate statues
and case law demonstrating that a federal question exists. The
Court will hear the matter on Monday, October 31, 2005, at
11:30 a.m. in Courtroom 1, fourth floor, U.S. Courthouse. Failure
to comply with this Order shall be deemed consent to dismissal of
this action for lack of subject matter jurisdiction.
Pending resolution of the jurisdictional issue all other
motions are STAYED. The November 7, 2005, hearing on
plaintiff's motion for default judgment and defendant's motion to
dismiss the complaint are VACATED.
IT IS SO ORDERED.
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