The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel.*fn1 Pursuant to this court's screening order of March 10, 2010 (Dkt. No. 8), plaintiff filed an amended complaint wherein he alleges that defendant The McClatchy Company is liable for defamation, libel, and slander based on its publication of an article that stated that plaintiff was wanted by the Sacramento Police for the alleged commission of sex crimes against women and children. (Dkt. No. 11 at 3.) For the reasons stated below, the court recommends that plaintiff's amended complaint be dismissed with prejudice, pursuant to the court's screening obligation stated in 28 U.S.C. § 1915(e)(2), for failure to allege a proper basis for this court's subject matter jurisdiction.
This court's March 10, 2010 order dismissed plaintiff's complaint for failure to assert a proper basis for the court's subject matter jurisdiction because the complaint contained no allegations addressing subject matter jurisdiction. (Dkt. No. 8.) The order set forth an overview of the general bases for federal subject matter jurisdiction and provided plaintiff with an opportunity to file an amended complaint that alleged a proper basis for the court's subject matter jurisdiction. (Id. at 4-5.)
On March, 19, 2010, plaintiff filed an amended complaint, which alleges that this court has subject matter jurisdiction over the action based on its federal question and/or removal jurisdiction. (See Dkt. No. 11.) The amended complaint alleges that "Plaintiff's complaint is grounded in defamation, libel, [and] slander," and that plaintiff "attempts to bring this matter within 'The Federal -- Question Removal Statute." (Id. at 3.) It further asserts that plaintiff's right to invoke the court's federal question or removal jurisdiction "falls within the means of the equal protection and due process of laws created by the United States Constitution and the laws which govern the state of California," but plaintiff offers no allegations that defendant, a private entity, violated his equal protection or due process rights. (Id.)
As an aside, although plaintiff's original complaint named The Sacramento Bee newspaper as a defendant and contained an ambiguous reference to The McClatchy Company as a possible defendant that "employs" The Sacramento Bee, his amended complaint names The McClatchy Company as the sole defendant.*fn2 (Dkt. No. at 11(caption).) The amended complaint no longer contains any allegations that specifically refer to The Sacramento Bee newspaper.*fn3 (See generally id.) The fact that plaintiff's complaint now seeks to sue a different defendant is of no moment because, as discussed below, the amended complaint does not allege a proper basis for this court's federal question jurisdiction or removal jurisdiction.
Generally, original federal subject matter jurisdiction may be premised on two bases: (1) federal question jurisdiction, and (2) diversity jurisdiction. Relevant here, district courts have federal question jurisdiction over "all civil actions that arise under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "A case 'arises under' federal law either where federal law creates the cause of action or 'where the vindication of a right under state law necessarily turn[s] on some construction of federal law.'" Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (modification in original) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). "[T]he presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1091 (9th Cir. 2009).
Plaintiff's amended complaint asserts that this court has federal question jurisdiction over plaintiff's defamation, libel, and slander claims. However, plaintiff's claims, which are based on California Civil Code §§ 45 and 46(1), arise under the laws of the State of California and not federal law.*fn4 (See also Dkt. No. 11 at 4 (stating that "this civil action 'arises under' California laws," citing California Civil Code §§ 45 and 46(1)); see id. ("Plaintiff contends that this district court does have jurisdiction over this matter by the statutes and laws granted by the California Legislature under Calif. Code of Civil Procedures [sic], sections 45 and 46(1)....").) Plaintiff does not allege that a federal statute creates the claim for relief on which plaintiff has sued. Accordingly, there is no adequate basis for the court to assert federal question jurisdiction.
Unlike his original complaint, plaintiff's amended complaint alleges that equal protection and due process laws provide him with "the right" to invoke the federal question or removal jurisdiction of this court. (Dkt. No. 11 at 3:7-10.) This does not, however, constitute an allegation that the court has original jurisdiction premised on 28 U.S.C. § 1331, even if construed broadly.
Although not required to do so in a complaint, plaintiff also cites a number of cases in support of his allegation that this court has federal question jurisdiction over his defamation, libel, and slander claims. First, he cites Metabolife International, Inc. v. Wornick, 72 F. Supp. 2d 1160 (S.D. Cal. 1999), as supporting this court's federal question jurisdiction. (Dkt. No. 11 at 4.) However, Metabolife International addresses the mechanics of a special motion to strike under California's anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, in a defamation action and does not address federal question jurisdiction or removal jurisdiction. See Metabolife International, 72 F. Supp. 2d at 1165-66. Plaintiff also cites Kaelin v. Globe Communications Corp., 162 F.3d 1036 (9th Cir. 1998), but that case involved an action removed to federal court on the basis of federal diversity jurisdiction. Id. at 1038. Plaintiff expressly, exclusively, and repeatedly premises subject matter jurisdiction here on the court's federal question jurisdiction. Similarly, plaintiff's citation to Harte-Hank Communications, Inc. v. Connaugton, 491 U.S. 657 (1989), does not support his allegation of federal question jurisdiction because subject matter jurisdiction in that case was premised on the court's federal diversity jurisdiction. Id. at 660. Furthermore, plaintiff's citation to Selleck v. Globe International, Inc., 166 Cal. App. 3d 1123, 212 Cal. Rptr. 838 (Ct. App. 1985), is misplaced, as the plaintiff in that case pursued his claim in California state court, thus not implicating a jurisdictional inquiry in federal court.
Finally, to the extent that plaintiff is alleging that this court has federal question jurisdiction as a result of this court's removal jurisdiction, he is incorrect for several reasons. First, plaintiffs may not invoke the court's removal jurisdiction because the right to remove a case is vested exclusively in defendants. See 28 U.S.C. § 1441(a) (stating that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants" (emphasis added)); see also Am. Int'l Underwriters (Philippines), Inc. v. Cont'l Ins. Co., 843 F.2d 1253, 1260 (9th Cir. 1988) ("The right to remove a state court case to federal court is clearly limited to defendants."). Second, even if plaintiff could remove this action from state court, the amended complaint contains no allegation of pending state-court litigation. Third, even if plaintiff were entitled to invoke the court's removal jurisdiction and there was a pending state-court action, there must be a basis for this court's original jurisdiction in order to remove pursuant to 28 U.S.C. § 1441. See Exxon Mobile Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 563 (2005) ("[A] district court has original jurisdiction of a civil action for purposes of [28 U.S.C.] § 1441(a) as long as it has original jurisdiction over a subset of the claims constituting the action."). Accordingly, the federal removal statute does not provide a basis for this court's subject matter jurisdiction.
For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's amended complaint (Dkt. No. 11) be dismissed with prejudice for failure to allege a proper basis for this court's federal subject matter jurisdiction; and
2. The Clerk of Court be directed to close this case.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the ...