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OGUNSALU v. NAIR

United States District Court, S.D. California


October 6, 2005.

CORNELIUS OGUNSALU, Plaintiff,
v.
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.

20051006

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