United States District Court, C.D. California
AMENDED ORDER RE: DEFENDANT'S MOTION TO DISMISS
D. PREGERSON UNITED STATES DISTRICT JUDGE.
to the Ninth Circuit's instructions, see Dkt. 51, the
court hereby adopts the following amended order dismissing
Plaintiff's Complaint without prejudice.
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.)
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.)
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).
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.
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).
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
(3) citizens of different States and in which citizens or
subjects of a foreign state are ...