Wilson v. Liu

          ORDER DENYING MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION RE: DKT. NO. 13

          PHYLLIS J. HAMILTON, United States District Judge.

         Defendant 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.

         BACKGROUND

         Plaintiff 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.

         However, 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”) the following:

• 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.

         Plaintiff 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 slur. Id.

         Plaintiff 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. at 9.

         Plaintiff 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.

         DISCUSSION

         A. Legal Standard

         A 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).

         A 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, ...