United States District Court, N.D. California
ORDER DENYING MOTION TO DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION RE: DKT. NO. 13
PHYLLIS J. HAMILTON, United States District Judge.
Sofie Liu's (“defendant”) motion to dismiss
for lack of subject matter jurisdiction pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(h)(3) (the
“motion”) came on hearing before this court on
September 25, 2019. Plaintiff appeared on her own behalf.
Defendant appeared through her counsel, John S. Richards.
Having read the papers filed by the parties and carefully
considered their arguments and the relevant legal authority,
and good cause appearing, the court hereby DENIES the motion
for the following reasons.
filed her form complaint for a civil case on July 23, 2019.
Dkt. 1 (“Compl.”). In it, plaintiff generally
alleges claims under Title 42 U.S.C. §§ 3601-3619,
3631 (the “Federal Fair Housing Act” or the
“FHA”) and California Civil Code § 1942.5.
Compl. ¶ II.A. To support such claims, plaintiff
specifically alleges only that “the constant harassment
and retaliation by my landlord has [sic] my living conditions
to be uninhabitable.” Id. ¶ III (emphasis
added). In her complaint's civil cover sheet, plaintiff
notes “racial discrimination and retaliation” as
a brief description of its cause of action. Dkt. 1-1 ¶
VI. The complaint does not include any allegations of
specific acts of discrimination or retaliation by defendant
or any additional allegations of such conduct generally.
in her July 23, 2019 motion for preliminary injunction,
plaintiff does detail a specific incident of race-based
discrimination. In particular, plaintiff describes a
situation on April 13, 2019 where defendant's boyfriend,
during a visit with defendant at the subject premises, stated
to a third-party property manager (“Mr. Wong”)
• He does not like “to do business with black
folks.” Dkt. 3 at 8.
• “I know these kinds of black folks that's
what they do . . . if you don't think they staged the
house because we are coming and look at the make shift
repairs on the garage.” Id.
then adds that, immediately after defendant's boyfriend
made these statements, he “stated to Mr. Wong you need
to issue a three day notice to pay or quit . . . go now and
tell them . . . if you need to, we will go with you.”
Id. Plaintiff further adds that, on May 7, 2019, she
received a phone call from defendant's boyfriend
threatening to terminate her lease. Id. at 9.
Plaintiff adds that she received a similar phone call on May
8, 2019 and, on that same day, plaintiff sent defendant an
email stating that she overheard defendant's conversation
with her boyfriend and she did not appreciate the racial
states that, on May 9, 2019, she received eviction-related
papers, including a 60-day notice to end tenancy.
Id. at 9, Ex. K. Plaintiff states that such notice
“is clearly a retaliation from the email that I sent
[defendant] on Wednesday, May 8, 2019 that I overheard
Jeff's [boyfriend] conversation with the racial slur and
defamation of my character. This is arbitrarily
discriminating against my husband and me.” Id.
adds that, on May 11, 2019, she received another phone call
from defendant's boyfriend threatening to evict her.
Id. Plaintiff adds that she received a similar call
from defendant's boyfriend again on June 20, 2019.
Id. at 11. Plaintiff adds that she and her husband
received three additional calls from defendant's
boyfriend on July 16, 2019 and July 18, 2019. Id.
federal court may dismiss an action under Federal Rule of
Civil Procedure 12(b)(1) for lack of federal subject matter
jurisdiction. Fed. R. Pro. 12(b)(1). Rule 12(h)(3) similarly
provides that a court “must dismiss the action”
if it “determines at any time that it lacks
subject-matter jurisdiction.” Id. 12(h)(3).
Because “[a] federal court is presumed to lack
jurisdiction in a particular case unless the contrary
affirmatively appears, ” the burden to prove its
existence “rests on the party asserting federal subject
matter jurisdiction.” Pac. Bell Internet Servs. v.
Recording Indus. Ass'n of Am., Inc., 2003 WL
22862662, at *3 (N.D. Cal. Nov. 26, 2003).
jurisdictional challenge may be facial or factual. Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). When the attack is facial, the court determines
whether the allegations contained in the complaint are
sufficient on their face to invoke federal jurisdiction.
Id. Where the attack is factual, however, ...