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Anthony Brodzki v. United States of America

January 26, 2012

ANTHONY BRODZKI, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed January 26, 2012 **

NOT FOR CITATION

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DENYING ALL OTHER PENDING MOTIONS [Re: Docket Nos. 8, 9, 15, 16, 20]

On October 31, 2011, Anthony Brodzki filed in forma pauperis a civil complaint against the United States of America ("United States" or "government"), seeking $500 million in damages for 18 alleged harassment and privacy violations.*fn1 Dkt. No. 1. ("Complaint"). According to the complaint, 19 the alleged injuries occurred as a result of the government's use of "communications equipment" 20 capable of causing "tort[s]" to plaintiff's "seclusion and privacy." Id. 21

This court granted plaintiff's request to proceed in forma pauperis. Dkt. No. 4. Plaintiff then 22 filed a motion to appoint counsel. Dkt. No. 8. Defendant has moved to dismiss for lack of subject 23 matter jurisdiction and failure to state a claim. Dkt. No. 9. Brodzki has not opposed the motion to 24 dismiss, but has instead filed letters requesting 1) an injunction; 2) a temporary restraining order; 25 and 3) an emergency temporary restraining order, all of which are virtually identical in character. 26 Dkt. Nos. 16, 17, 20. The defendant has opposed the first motion for an injunction. Dkt. No. 17. As 27 the time for opposing defendant's motion to dismiss and plaintiff's first three motions have now 2 expired, the matters are deemed submitted. The court finds that a hearing is unnecessary at this time, 3 and VACATES the January 31 hearing. U.S.C. 636(c).

a complaint. FED. R. CIV. P. 12(b)(1). If the court determines that it does not have subject-matter

jurisdiction, it must dismiss the claim. FED. R. CIV. P. 12(h)(3). A lack of jurisdiction is presumed

unless the party asserting jurisdiction establishes that it exists. Kokkonen v. Guardian Life Ins. Co. 13 of Am., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion may challenge either the sufficiency of 14 the pleadings to establish jurisdiction, or "the existence of subject matter jurisdiction in fact." 15

Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). When a 16 defendant challenges the actual existence of subject matter jurisdiction, the plaintiff's allegations are 17 not taken as true and plaintiff bears the burden of proving that jurisdiction exists. Id.; Tosco Corp. v. 18

Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001). Because plaintiff is 19 proceeding pro se, the court liberally construes his complaint. Id. 20

21 laws, or treaties of the United States." 28 U.S.C. § 1331. A claim "arises under" federal law if, 22 based on the "well-pleaded complaint rule," the plaintiff alleges a federal cause of action. Vaden v. 23

Discovery Bank, 129 S. Ct. 1262, 1272 (2009). Defenses and counterclaims asserting a federal 24 question do not satisfy this requirement. Id. at 1273. 25

Defendant asserts that this court lacks subject matter jurisdiction because 1) plaintiff has not

27 established that the government has waived its sovereign immunity in this action, and 2) plaintiff 28 has not shown he is eligible to bring suit under the ...


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