United States District Court, N.D. California
ORDER DISMISSING AMENDED COMPLAINT WITHOUT PREJUDICE;
DIRECTIONS TO CLERK
M. CHESNEY UNITED STATES DISTRICT JUDGE
the Court is plaintiff Jimmy Lee Davis's amended
complaint ("AC"), filed August 22, 2017. Having
read and considered the amended complaint, the Court rules as
order filed May 30, 2017, Magistrate Judge Laurel Beeler, to
whom the above-titled case was then assigned, granted
plaintiff's application to proceed in forma pauperis.
Where, as here, a party proceeds in forma pauperis, the
district court "shall dismiss the case” if the
plaintiff “fails to state a claim on which relief may
be granted." See 28 U.S.C. §
1915(e)(2)(B)(ii). Pursuant to § 1915(e)(2)(B)(ii), the
Court, by order filed August 8, 2017, dismissed
plaintiff's initial complaint and afforded plaintiff
leave to amend. In so ruling, the Court adopted a Report and
Recommendation, filed July 19, 2017, in which Magistrate
Judge Beeler found plaintiff had failed to allege sufficient
facts to assert a cognizable claim against either Page
Publishing Company ("Page") or the Federal
Communications Commission ("FCC"), the two
defendants named in plaintiff's complaint.
AC, plaintiff no longer asserts any claims against the FCC.
Plaintiff continues, however, to assert a claim against Page,
which claim is based on Page's alleged breach of a
contract, specifically, a "Publishing Agreement"
under which Page agreed to publish a book written by
plaintiff and to provide related services. (See AC,
exhibit.) Plaintiff alleges Page "breached" the
contract by "fallaciously promising to put [his book] in
every book store in America" (see AC at 1), by
"allow[ing] [its] editing and page design departments to
incessantly err by misspelling words and declining to
punctuate and syntax properly" (see id.), and
by "publish[ing] [his book] with conspicuous errors in
it" (see AC at 2). As relief, plaintiff seeks
"a sum of $80, 000.00 for aggravation and mental
pain." (See id.)
Federal Rules of Civil Procedure require a plaintiff to
include in a complaint "a short and plain statement of
the grounds for the court's jurisdiction."
See Fed. R. Civ. Proc. 8(a)(1). In the AC, plaintiff
has not included any statement as to the district court's
jurisdiction over the subject matter of his claims. As
"[s]ubject matter jurisdiction is a threshold issue in
the absence of which the court cannot proceed to hear other
issues, see Blackburn v. United States, 100 F.3d
1426, 1436 (9th Cir. 1996), the Court must first determine
whether it has subject matter jurisdiction over
forth in Magistrate Judge Beeler's Report and
Recommendation, the district court's jurisdiction over
plaintiff's initial complaint was dependent on his claim
against the FCC, a federal agency. See 28 U.S.C.
§ 1346 (providing for limited federal jurisdiction over
actions brought against the United States); see also
28 U.S.C. § 1331 (providing district courts with
jurisdiction over actions "arising under" federal
law). As plaintiff's claim against Page, a private party,
was for breach of contract, it arose solely under state law.
See id. Although federal courts have jurisdiction
over state law claims where the action is between citizens of
different states and "the matter in controversy exceeds
the sum or value of $75, 000, " see 28 U.S.C.
§ 1332(a), plaintiff's claim against Page, even
assuming diversity of citizenship had been properly alleged,
for damages in the amount of $7000, a sum considerably less
than the jurisdictional minimum and which, as plaintiff
alleged, was actually "twice the amount of money he had
to pay to have [his book] published" by Page
(see Compl. at 2).
AC, plaintiff, in what appears to be an attempt to establish
diversity jurisdiction, has increased the amount he seeks
from $7000 to $80, 000. Although, ordinarily, for purposes of
determining the amount in controversy, "the sum claimed
by the plaintiff controls, " an exception exists where,
as here, "it is apparent, to a legal certainty, that the
plaintiff cannot recover the amount claimed." See
St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S.
283, 288-89 (1938). In particular, as noted above, Page
alleges he is entitled to the higher amount as compensation
for the "aggravation and mental pain" assertedly
caused by Page's alleged breach of contract.
(See AC at 2.) Under California law, however, a
plaintiff cannot recover "damages for emotional
suffering and emotional distress" as a remedy for the
"breach of an ordinary commercial contract, "
see Erlich v. Menezes, 21 Cal.4th 543, 558 (1999),
the sole exception to said rule being where "the express
object of the contract is the mental and emotional well-being
of one of the contracting parties, " see id. at
559 (providing, as example of exceptional contract,
"cemetery's agreement to keep burial service private
and to protect grave from vandalism").
even assuming plaintiff and Page are diverse in citizenship,
the Court lacks diversity jurisdiction over plaintiff's
claim against Page.
only other possible basis for the Court's jurisdiction
over a state law claim such as plaintiff's against Page
is where the state law claim is "supplemental" in
nature. See 28 U.S.C. § 1367(a). Where an
action includes a claim over which the district court has
"original jurisdiction, " such court has
"supplemental jurisdiction over all other claims that
are so related to claims in the action within original
jurisdiction that they form part of the same case or
controversy." See id. Here, however, as
Magistrate Judge Beeler found, plaintiff failed to allege in
his initial complaint sufficient facts to set forth the
nature of his claim against the FCC and, as noted above,
plaintiff has asserted no claim against the FCC in his AC,
nor, indeed, has he made any reference to the FCC therein.
Consequently, the Court is unable to determine whether
plaintiff's breach of contract claim against Page is part
of a "case or controversy" between plaintiff and
the FCC. See id.
the Court finds plaintiff has failed to meet his burden to
establish supplemental jurisdiction over his claim against
Page. See Kokkoken v. Guardian Life Ins. Co., 511
U.S. 375, 377 (1994) (holding district court must
"presume[ ]" it lacks jurisdiction over claims;
further holding "the burden of establishing the contrary
rests upon the party asserting jurisdiction").
even assuming the Court has supplemental jurisdiction over
plaintiff's claim against Page, the Court, in light of
the dismissal of plaintiff's claim against the FCC and
the early stage of the instant proceedings, finds it
appropriate to decline to exercise such jurisdiction.
See 28 U.S.C. § 1367(c)(3) (providing court may
"decline to exercise supplemental jurisdiction over a
claim" where "court has dismissed all claims over
which it has original jurisdiction");
Carnegie-Mellon University v. Cohill, 484 U.S. 343,
350 n. 7 (1988) (holding, "in the usual case in which
all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent
[supplemental] jurisdiction doctrine - judicial economy,
convenience, fairness, and comity - will point toward
declining to exercise jurisdiction over the remaining
the AC will be dismissed without prejudice.
reasons stated above, plaintiff's amended complaint is
hereby DISMISSED, without prejudice to plaintiff's filing
his claim against Page in ...