United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS
ACTION BE DISMISSED, WITHOUT PREJUDICE, FOR LACK OF
SUBJECT-MATTER JURISDICTION (ECF NO. 1)
Greg Gallegos, is proceeding pro se in this action
(ECF No. 1), and has applied to proceed in forma
pauperis (ECF No. 3). The Court recommends that this
action be dismissed without prejudice and without leave to
amend for lack of subject-matter jurisdiction.
Court must dismiss an action at any time if the Court
determines that it lacks subject-matter jurisdiction over the
action. See Fed. R. Civ. P. 12(h)(3) (“If the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”);
Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th
Cir. 2002) (“[A] court may raise the question of
subject matter jurisdiction, sua sponte, at any time
during the pendency of the action, even on appeal.”).
are two bases for federal subject-matter jurisdiction:
federal question and diversity. Under federal question
jurisdiction, federal district courts “have original
jurisdiction over all civil actions arising under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. Under diversity jurisdiction, federal
district courts “have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum
or value of $75, 000 . . . and is between . . . citizens of
different states. . . .” 28 U.S.C. § 1332(a).
Plaintiff, as the party invoking federal jurisdiction,
“has the burden of proving the actual existence of
subject matter jurisdiction.” Thompson v.
McCombe, 99 F.3d 352, 353 (9th Cir. 1996).
the Complaint (ECF No. 1) alleges a single claim against
Dunion Law Firm. The claim appears to arise out of the law
firm’s representation of Plaintiff in a personal injury
action. The Complaint alleges:
The plaintiff herein is victem under stress that was
defrauded of “equitable” compensation by Dunnion
Law under set RULES of Law for injurys of 30 areas of
plaintiffs single body in line with A.M.A. and Insurers
standards, thus, [Defendants] are very guilty of Malice of
Fore thought in Obstruction of Justice with criminal intent,
because of bone fractures, brain trama, internal injurys,
neck, spinal, shoulder, torso, hip and legs damages that
creates medical costs for remainder of life.
(ECF No. 1 at 3 (underlining omitted); see Id . at
Complaint asserts that there is federal question jurisdiction
under the provisions of the U.S. Constitution. However, the
factual allegations of the Complaint do not support that
assertion. The Complaint also does not include factual
allegations that support a finding of diversity jurisdiction.
To the contrary, the complaint lists Plaintiff’s
address as Fresno, California and the defendant law
firm’s address as “Montray, ” California
(which the Court interprets as meaning Monterey, California),
indicating that diversity jurisdiction is lacking.
(See ECF No. 1.) Thus, based on the facts alleged in
the Complaint, the Court lacks subject-matter jurisdiction
over this case.
Court provided Plaintiff with an opportunity to provide
additional information regarding his assertion of federal
jurisdiction by issuing an order to show cause
(“OSC”) requiring Plaintiff to show cause why the
case should not be dismissed for lack of subject-matter
jurisdiction. (ECF No. 4.) In his response to the OSC,
Plaintiff asserts that there is jurisdiction under the U.S.
Constitution and makes clear that he is not claiming
diversity jurisdiction, and is only claiming federal question
S.O.F. of Jurisdiction is SUBJECT MATTER already stated
clearly as #470 Federal Constitution LAW of U.S. Burden of
Proof has been stated on Cival Cover sheet sent as #470 in V.
ORIGIN: Original Proceeding answered already. Your 8-28-19
[OSC], p.2, line 12 is repitition. I did NOT state DIVERSITY
whatsoever, only FEDERAL, which can only make moot your lines
13, 14 and 15s LACKING point. Facts are DIVERSITY was never
the issue. Case is FEDERAL. Above shows cause why case must
(ECF No. 5 (underlining omitted).)
the Complaint nor the additional information provided by
Plaintiff in his response to the OSC establishes federal
question jurisdiction. Plaintiffs assertion that he is
bringing his claim under the U.S. Constitution is
insufficient to establish federal question jurisdiction
because the Complaint does not include a claim for violation
of a particular provision of the Constitution. See
28 U.S.C. § 1331. The Complaint also does not include a
claim for violation of a federal law or treaty of the United
States. See Id . To the contrary, Plaintiffs claim
against the defendant law firm appears to be a state law
claim for fraud or malpractice arising out of the
defendant’s representation of Plaintiff in a personal
injury action. (See ECF No. 1.) Plaintiff must
pursue his state law claim in state court, not federal court.
the Court RECOMMENDS that:
1. This action be dismissed, without prejudice and without
leave to amend, based on lack of subject-matter ...