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Gwendolyn Walker Smith, et al., Al v. Breakthrough International

April 29, 2013

GWENDOLYN WALKER SMITH, ET AL., AL., PLAINTIFFS,
v.
BREAKTHROUGH INTERNATIONAL, ET
DEFENDANTS.



The opinion of the court was delivered by: Jon S. Tigar United States District Judge

ORDER DISMISSING COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION Re: ECF No. 31

I. INTRODUCTION

Defendant Breakthrough International, Inc. ("Breakthrough") has moved to dismiss Plaintiffs Gwendolyn Walker Smith and Zeus Harrison Smith's ("Plaintiffs") First Amended 16 Complaint ("FAC") for lack of subject matter jurisdiction, among other reasons. Notice of Motion 17 and Motion to Dismiss Plaintiffs' First Amended Complaint ("Mot."), ECF No. 31. The Court 18 finds that this matter is suitable for disposition without oral argument, pursuant to Federal Rule of 19 Civil Procedure 78(b) and Civil Local Rule 7-1(b). Since the Court is not satisfied that it has 20 subject matter jurisdiction over this matter, it hereby DISMISSES the FAC WITHOUT 21 PREJUDICE, subject to Plaintiffs filing a sworn affidavit attesting to their state citizenship on 22 April 12, 2012. Without such an affidavit, the Court is likely to dismiss the case with prejudice. 23

II. BACKGROUND

A. Procedural and Factual Background

On April 12, 2012, Plaintiffs Gwendolyn Smith and Zeus Harrison Smith ("Plaintiffs") 26 filed a complaint ("the Complaint") against Defendants Howard Elan, Reverend Oracle, and 27 Breakthrough, alleging violations of the U.S. and California constitutions, alleging violation of the 28 federal Electronic Communications and Privacy Act ("ECPA"), 18 U.S.C. § 2511, and raising several state tort causes of action. ECF No. 1. The Court granted Plaintiff Gwendolyn Smith's 2 application to proceed in forma pauperis, but also dismissed the Complaint without prejudice 3 under the screening procedures in 28 U.S.C. § 1915(e)(2)(B). ECF No. 12.*fn1 The Court held that 4 the Complaint failed to state any claim against Breakthrough, that Plaintiffs' ECPA claim was 5 time-barred, that the Complaint failed to invoke the Court's subject matter jurisdiction in the 6 absence of the ECPA claim, and further finding that that the Complaint failed to allege sufficient 7 facts to state any claim except defamation, false light, and intentional infliction of emotional 8 distress. Id. The Court granted Plaintiffs leave to file an amended complaint, but noted that 9

Plaintiffs asserted Oregon citizenship while at the same time listing a Sebastapol, California 10 address on the Court's electronic case filing system. Id. The Court ordered Plaintiffs "to submit 11 an affidavit, under oath, attesting to their true residency," in any amended complaint. Id. 12

In October 2012, Plaintiffs filed the FAC. ECF No. 16. In the FAC, Plaintiffs allege that they are both residents of Portland, Oregon, and are citizens of the State of Oregon. FAC, at ¶ 1. 14

The FAC asserts that "[p]ursuant to, at a minimum, Cal. Civ. Pro § 410.10 [sic], the Court has 15 jurisdiction under the provisions of 28 U.S.C. § 1332." Id. at ¶ 5. The FAC's caption lists the 16

Defendants as "Breakthrough International, d/b/a Straighttalknews.org, d/b/a Howard Elan and 17

Reverend Oracle, Defendants." Id. The FAC lists four causes of action: "Invasion of Privacy - 18

Physical Intrusion on Solitude And/Or Private Affairs, in Violation of Federal and State 19

Constitutions and 18 U.S.C. § 1702," "Defamation and Defamation Per Se," "False Light," and 2 "Conspiracy to Defame." Plaintiffs did not file the affidavit that the Court ordered them to file, 3 but in November 2012, they filed a notice of change of address, stating that "as of October 10, 4 2012," they were no longer receiving mail at their Sebastapol address, and submitting a new 5 Portland, Oregon address. ECF No. 22. 6

In granting Plaintiff Zeus Harrison Smith's separate application to proceed in forma 7 pauperis, the Court dismissed the FAC's first and fourth causes of action with prejudice, finding 8 that the first was time-barred and that the fourth did not state a legal claim. ECF No. 25. 9 Defendant Breakthrough moves to dismiss on the grounds that Plaintiffs have failed to 10 meet their burden of establishing that the Court has subject matter jurisdiction over the case, that ...


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