Jamali v. Maricopa, County of et al

Filing 47

ORDER Plaintiff's complaint (Doc. 1 ) is dismissed without prejudice for lack of subject matter jurisdiction. Plaintiff may file an amended complaint on or before June 28, 2013, consistent with this order. The Clerk of Court shall terminate this action without further order of the Court if Plaintiff fails to comply with this deadline. All pending motions (Docs. 8 , 10 , 14 , 15 , 28 , 43 , 44 , 46 ) are denied as moot. Signed by Judge David G Campbell on 5/29/2013. (KMG)

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    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Imran Ahmad Jamali, Plaintiff, 10 11 ORDER v. 12 No. CV13-613 PHX DGC Maricopa County, a private municipal corporation, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court are the motion to dismiss filed by Defendant Maricopa County (“the County”)1 (Doc. 8), the motion to dismiss filed by Defendants James Richmond and Richmond Consulting Group, LLC (Doc. 10), the motion to dismiss filed by Defendant Kyle Ritter (Doc. 14), the motion for alternative service of process filed by Plaintiff (Doc. 15), the motion to schedule a default hearing filed by Plaintiff (Doc. 28), the motion for extension of time for service filed by Plaintiff (Doc. 43), and the motion to compel answer filed by Plaintiff (Doc. 44). No party has requested oral argument. For the reasons set forth below, the Court will dismiss the complaint for lack of subject matter jurisdiction. I. Background. Chandler police agents arrested Plaintiff on October 4, 2010. Doc. 1, ¶ 31. The following day, the County took Plaintiff’s name, image, and other private information. 1 The Court will refer to the other Defendants collectively as “the Website Defendants.”     1 Id., ¶ 32. The County distributed this information to the Website Defendants. Id., 2 ¶ 33. The Website Defendants posted the information to their webpages (id., ¶ 33), 3 and required payment to have the information removed (id., ¶ 35). The information 4 remains on the Internet even after an individual website removes the information from 5 its webpage. Id., ¶ 36. 6 The complaint asserts the following twelve causes of action: (1) invasion of 7 privacy by means of unauthorized appropriation of name or likeness; (2) invasion of 8 privacy by means of public disclosure of private facts; (3) invasion of privacy by false 9 light; (4) invasion of privacy by intrusion; (5) intentional infliction of emotional 10 distress; (6) gross negligence; (7) blackmail; (8) extortion; (9) civil conspiracy; 11 (10) defamation by slander; (11) conversion; and (12) unjust enrichment. Doc 1.2 12 II. Dismissal of Complaint for Lack of Subject Matter Jurisdiction. 13 The County moves to dismiss the complaint for lack of subject matter jurisdiction. 14 Doc. 8 at 4-6. The County argues that the complaint asserts only state law claims and 15 that there is no other basis for the Court’s subject matter jurisdiction. Id. 16 “Federal courts are courts of limited jurisdiction. They possess only that power 17 authorized by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 18 511 U.S. 375, 377 (1994). Pursuant to federal statutes, this Court has subject matter 19 jurisdiction over a case only if the complaint raises a federal question or the amount in 20 controversy exceeds $75,000 and the parties are citizens of different states. 21 28 U.S.C. §§ 1331, 1332(a). “The party asserting jurisdiction has the burden of proving 22 all jurisdictional facts.” Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th 23 Cir. 1990) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)); 24 see Fenton v. Freedman, 748 F.2d 1358, 1359, n.1 (9th Cir. 1984). Courts must presume 25 a lack of jurisdiction until the plaintiff proves otherwise. Kokkonen, 511 U.S. at 377. To 26 27 2 See The blackmail claim is asserted against the Website Defendants (Doc. 1, ¶ 72), and the defamation by slander claim against Defendant “Doe 8” (id., ¶¶ 82-89). The complaint asserts the other claims against all Defendants. 28 -2-     1 overcome that presumption, the plaintiff must provide a statement of the grounds for the 2 court’s subject matter jurisdiction. See Fed. R. Civ. P. 8(a). 3 Pro se Plaintiff asserts that the Court has federal question jurisdiction. Doc. 1, ¶ 4 20 (“The complaint arises under the Constitution and laws of the United States and 5 therefore this court has jurisdiction pursuant Tile 18 U.S.C. § 241, Title 28 U.S.C. 6 § 1331 and Article II, sections 3, 8 and 33 of the constitution of the State of 7 Arizona.”). Federal question jurisdiction arises pursuant to 28 U.S.C. § 1331, which 8 provides: “The district courts shall have original jurisdiction of all civil actions arising 9 under the Constitution, laws, or treaties of the United States.” Section 1331 does not 10 itself create federal jurisdiction; it “confers jurisdiction only where a federal question 11 is otherwise at issue[.]” Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980). In 12 general, a federal question invokes a “right or immunity created by the Constitution or 13 laws of the United States[.]” Gully v. First Nat'l Bank, 299 U.S. 109, 112 (1936). 14 That federal right or immunity “must be an element, and an essential one, of the 15 plaintiff’s cause of action.” Id. While it is not an infallible rule, if federal law creates 16 the cause of action, federal question jurisdiction will generally lie. Murphey v. Lanier, 17 204 F.3d 911, 912 (9th Cir. 2000); see Am. Well Works Co. v. Layne & Bowler Co., 18 241 U.S. 257, 260 (1916) (“A suit arises under the law that creates the cause of 19 action.”). 20 The complaint’s jurisdictional statement and the extortion claim refer to 18 21 U.S.C. § 241. Doc. 1, ¶¶ 20, 75. But because § 241 is a criminal statute that does not 22 give rise to civil liability, see Allen v. Gold Country Casino, 464 F.3d 1044, 1048 23 (9th Cir. 2006), the complaint does not state a claim arising under § 241 and therefore 24 the Court’s federal question jurisdiction cannot be premised on this statute. The 25 complaint does not identify any other federal statute or any right created by the United 26 States Constitution.3 See 28 U.S.C. § 1331. Nor does the complaint assert that the 27 3 Plaintiff’s response indicates that he is asserting a 42 U.S.C. § 1983 claim 28 -3-     1 parties are citizens of different states. See 28 U.S.C. § 1332(a). Because Plaintiff has 2 not shown that his complaint is subject to federal question or diversity jurisdiction, the 3 Court will dismiss the complaint for lack of subject matter jurisdiction. See Fed. R. 4 Civ. P. 12(h)(3). 5 III. Leave to Amend. 6 “The court should freely give leave [to amend a pleading] when justice so 7 requires.” Fed. R. Civ. P. 15(a)(2); see 28 U.S.C. § 1653 (authorizing amendment of 8 pleadings to cure defective jurisdictional statement). In the Ninth Circuit, “[a] pro se 9 litigant must be given leave to amend his or her complaint unless it is ‘absolutely clear 10 that the deficiencies of the complaint could not be cured by amendment.’” Karim- 11 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (quoting Noll v. 12 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)); see also Waters v. Young, 100 F.3d 13 1437, 1441 (9th Cir. 1996) (“As a general matter, this court has long sought to ensure 14 that pro se litigants do not unwittingly fall victim to procedural requirements that they 15 may, with some assistance from the court, be able to satisfy.”). The Court will dismiss 16 the complaint without prejudice and allow Plaintiff to file an amended complaint, 17 consistent with this order, that properly invokes the Court’s jurisdiction. Plaintiff shall 18 have until Friday, June 28, 2013, to file an amended complaint. 19 The Court is required to give some guidance to a pro se plaintiff regarding the 20 deficiencies of a dismissed complaint. Karim-Panahi, 839 F.2d at 625. Plaintiff’s 21 complaint has failed adequately to state the basis on which this Court may exercise 22 jurisdiction over his claims against any of the Defendants. Plaintiff is advised that his 23 amended complaint must include a “short and plain statement of the grounds” for this 24 Court’s jurisdiction over each claim against each Defendant. Fed. R. Civ. P. 8(a). 25 26 27 (Doc. 32 at 7), and claims under the Fifth and Seventh Amendment to the U.S. Constitution (id. at 12). The Court has construed the complaint liberally, see Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987), and finds that the complaint does not assert these claims. 28 -4-     1 Pursuant to federal statutes, this Court has subject matter jurisdiction over a claim only 2 if (a) the complaint alleges a federal claim (“federal question jurisdiction”), (b) the 3 amount in controversy exceeds $75,000 and the parties are citizens of different states 4 (“diversity jurisdiction”), or (c) federal question or diversity jurisdiction exists over 5 some of the claims and supplemental jurisdiction is established over the remaining 6 claims. See 28 U.S.C. §§ 1331, 1332(a), 1367. 7 IV. Plaintiff's Obligations. 8 Defendants’ motions raise issues concerning (1) the filing of a notice of claim, 9 A.R.S. § 12-821.01; (2) failure to state a claim, Fed. R. Civ. P. 12(b)(6); (3) service of 10 process, Fed. R. Civ. P. 4(j), (m); and (4) statutes of limitations, A.R.S. §§ 12-821, 12- 11 542. Docs. 8, 10, 14. If Plaintiff is able to cure the jurisdictional defect of his 12 complaint, the amended complaint will have to address these issues as well. 13 Plaintiff is advised that he must become familiar with, and follow, the Federal 14 Rules of Civil Procedure and the Rules of the United States District Court for the 15 District of Arizona (“Local Rules”). 16 available at the following Internet website: www.law.cornell.edu/rules/frcp/. A copy 17 of the Court’s Local Rules of Civil Procedure may be obtained in the Clerk’s Office 18 and are available online at the Court’s Internet website: 19 (follow hyperlink titled “Rules/General Orders”). The Federal Rules of Civil Procedure are www.azd.uscourts.gov 20 For purposes of the amended complaint, Plaintiff is directed to Rule 8 of the 21 Federal Rules of Civil Procedure. Rule 8(a) provides that a complaint “must contain 22 (1) a short and plain statement of the grounds for the court’s jurisdiction, . . . (2) a 23 short and plain statement of the claim showing that the pleader is entitled to relief, and 24 (3) a demand for the relief sought.” Fed. R. Civ. P. 8(a). These pleading requirements 25 shall be set forth in separate and discrete paragraphs. Rule 8(d) provides that each 26 such paragraph “must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). The 27 forms contained in the Appendix to the Federal Rules of Civil Procedure – which 28 include forms regarding jurisdictional statements and sample complaints on various -5-     1 causes of action – “suffice under the[ ] rules and illustrate the simplicity and brevity 2 that the[ ] rules contemplate.” Fed. R. Civ. P. 84. 3 If Plaintiff fails to prosecute this action or to comply with the rules or any Court 4 order, the Court may dismiss the action with prejudice pursuant to Federal Rule of 5 Civil Procedure 41(b). See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 6 (holding that the district court did not abuse its discretion in dismissing a pro se 7 plaintiff’s complaint for failing to comply with a court order). 8 IT IS ORDERED: 9 1. subject matter jurisdiction. 10 11 2. 3. 16 17 The Clerk of Court shall terminate this action without further order of the Court if Plaintiff fails to comply with this deadline. 14 15 Plaintiff may file an amended complaint on or before June 28, 2013, consistent with this order. 12 13 Plaintiff’s complaint (Doc. 1) is dismissed without prejudice for lack of 4. All pending motions (Docs. 8, 10, 14, 15, 28, 43, 44, 46) are denied as moot. Dated this 29th day of May, 2013. 18 19 20 21 22 23 24 25 26 27 28 -6-

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