United States District Court, E.D. California
PRENTICE C. SMITH, SR., Plaintiff,
CVETICH ILIJA, Defendant.
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is proceeding in this action pro se. This matter was
accordingly referred to the undersigned by E.D. Cal.
302(c)(21). Plaintiff has filed a request for leave to
proceed in forma pauperis (“IFP”), and has
submitted the affidavit required by that statute.
See 28 U.S.C. § 1915(a)(1). The motion to
proceed IFP (ECF No. 2) will therefore be granted.
federal IFP statute requires federal courts to dismiss a case
if the action is legally “frivolous or malicious,
” fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2). A claim
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). Additionally, the court must consider the
presence or absence of jurisdiction; jurisdiction is a
threshold inquiry that must precede the adjudication of any
case before the district court. Morongo Band of Mission
Indians v. Cal. State Bd. of Equalization, 858
F.2d 1376, 1380 (9th Cir. 1988). Federal courts are courts of
limited jurisdiction and may adjudicate only those cases
authorized by federal law. Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994); Willy v. Coastal
Corp., 503 U.S. 131, 136-37 (1992). “Federal
courts are presumed to lack jurisdiction, ‘unless the
contrary appears affirmatively from the record.'”
Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993)
(quoting Bender v. Williamsport Area Sch. Dist., 475
U.S. 534, 546 (1986)). Without jurisdiction, the district
court cannot decide the merits of a case or order any relief.
See Morongo, 858 F.2d at 1380. The burden of
establishing jurisdiction rests upon plaintiff as the party
asserting jurisdiction. Kokkonen, 511 U.S. at 377.
brings suit against Ilija Cvetich, attorney at law. ECF No. 1
at 2. Plaintiff alleges that defendant breached a contract
for a loan of money. Id. at 5. No. other claim is
alleged. Plaintiff and defendant are both residents of
California. Id. at 1, 4. On the form complaint,
plaintiff checks the “federal question” box as a
basis for federal jurisdiction. Id. at 3.
complaint must be dismissed without leave to amend because
there is no basis for federal jurisdiction. “Congress
granted federal courts jurisdiction over two general types of
cases: cases that ‘aris[e] under' federal law,
§ 1331, and cases in which the amount in controversy
exceeds $ 75, 000 and there is diversity of citizenship among
the parties, § 1332(a). These jurisdictional grants are
known as ‘federal-question jurisdiction' and
‘diversity jurisdiction,' respectively.”
Home Depot U.S. A., Inc. v. Jackson, 139 S.Ct. 1743,
1746 (Aug. 5, 2019). Here, plaintiff asserts jurisdiction
based on a federal question. ECF No. 1 at 3. District courts
have original jurisdiction over “civil actions arising
under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. “A case
‘arises under' federal law either where federal law
creates the cause of action or ‘where the vindication
of a right under state law necessarily turn[s] on some
construction of federal law.'” Republican Party
of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir.
2002) (modification in original) (citing
Franchise Tax Bd. v. Constr. Laborers Vacation
Trust, 463 U.S. 1, 8-9 (1983)). In this case, the
complaint does not identify any federal laws or
constitutional violations. The factual allegations support
only a breach of contract claim. There is therefore no basis
for federal question jurisdiction.
there a basis for diversity jurisdiction. Plaintiff alleges
that plaintiff a citizen of the state of California. ECF No.
1 at 1. Defendant is also alleged to be a citizen of
California. Id at 4. Because both parties are
citizens of the same state, diversity cannot be the basis for
federal jurisdiction. Because the court does not have
jurisdiction over this case and this defect cannot be cured,
the complaint must be dismissed without leave to amend.
the undersigned recommends that plaintiff s request to
proceed in forma pauperis (ECF No. 2) be GRANTED but that the
complaint (ECF No. 1) be DISMISSED without leave to amend
because this court lacks jurisdiction.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within twenty one
days after being served with these findings and
recommendations, plaintiff may file written objections with
the court and serve a copy on all parties. Id; see
also Local Rule 304(b). Such a document should be captioned
“Objections to Magistrate Judge's Findings and
Recommendations.” Failure to file objections within the
specified time may waive the right to ...