Mutascu v. Botezatu

          AMENDED ORDER RE: DEFENDANT'S MOTION TO DISMISS [DKT. 39]

          DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE.

         Pursuant to the Ninth Circuit's instructions, see Dkt. 51, the court hereby adopts the following amended order dismissing Plaintiff's Complaint without prejudice.

         I. BACKGROUND

         Plaintiff in pro per George Mutascu and Defendant in pro per Emil Botezatu are both citizens of Romania. (Compl. ¶¶ 2-3, 6.) Plaintiff alleges that he met Defendant in a U.S. Immigration and Customs Enforcement (“ICE”) detention facility in Nevada. (Id. ¶ 5.) In May 2015, Defendant allegedly called Plaintiff, threatening him and his relatives. (Id. ¶ 11.) Plaintiff also claims that his car was vandalized. (Id. ¶ 12.). Furthermore, Plaintiff alleges he was informed by an acquaintance in June 2015 that Defendant had contracted with gang members to have him harmed. (Id. ¶ 13.)

         Defendant now moves to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2) for lack of jurisdiction and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt. 39.)

         II. LEGAL STANDARD

         Under Rule 12(b)(1), a complaint may be dismissed for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The burden of proof in a Rule 12(b)(1) motion is on the party asserting jurisdiction. See Ass'n of Am. Med. Coll. v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000).

         Motions to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) may be either facial or factual attacks. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). A facial attack “asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. (quotations omitted). In deciding a facial challenge under a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, the court “take[s] the allegations in the plaintiff's complaint as true.” Id.

         III. DISCUSSION

         Plaintiff George Mutascu invokes the court's federal diversity jurisdiction under 28 U.S.C. § 1332. District courts have diversity jurisdiction over all civil suits where the amount in controversy “exceeds the sum or value of $75, 000, exclusive of interest and costs” and there exists complete diversity of citizenship between the parties. 28 U.S.C. § 1332(a); Caterpillar Inc., v. Lewis, 519 U.S. 61, 68 (1996).

         As amended in 2011, 28 U.S.C. § 1332(a) provides for complete diversity of citizenship when the parties are:

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;

(3) citizens of different States and in which citizens or subjects of a foreign state are ...