Jose Apollo Sr. v. Arieta Apollo et al.

Filing 7

MINUTE ORDER [In Chambers] by Judge Otis D. Wright, II.: Plaintiff is ORDERED to SHOW CAUSE, in writing only, to be received by the Court no later than December 21, 2022, for why this action should not be dismissed without prejudice for lack of subject matter jurisdiction and failure to state a claim. Failure to timely respond to this order shall result in dismissal of the case without prejudice, without further warning. [See document for further details.] (es)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

2:22-cv-08367-ODW (KSx)

Title

Jose Apollo Sr. v. Arieta Apollo et al.

Present: The Honorable

Date

November 21, 2022

Otis D. Wright, II, United States District Judge

Sheila English

Not reported

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not present

Not present

Proceedings:

In Chambers

Federal courts have subject matter jurisdiction only as authorized by the Constitution and
Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). Federal district courts have original jurisdiction where an action
arises under federal law, or where each plaintiff’s citizenship is diverse from each defendant’s
citizenship and the amount in controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332(a). A
complaint must include, among other things, “a short and plain statement of the ground for the
court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). The Court has reviewed Plaintiff’s Complaint,
and it is not clear from the Complaint that the Court has subject matter jurisdiction over this
action.
Plaintiff asserts that “[t]his is a Family law case” in which he is suing his sisters, their
families, and Plaintiff’s other family members, regarding legal ownership of Plaintiff’s late
mother’s house. (See Compl. 2, ECF No. 1.) Plaintiff seeks more than $74 million dollars in
damages against ten individual defendants, as well as injunctive relief including arrest warrants
and search warrants for Defendants and their properties. (Id. at 10–13, Prayer for Relief.)
Plaintiff asserts federal question jurisdiction as the basis for this Court’s subject matter
jurisdiction over this case. (Id. at 2.) He purports to bring civil claims under 18 U.S.C. § 1001
for fraud and 10 U.S.C. § 921 Art. 121 for larceny. (Id.) However, Title 18 of the United
States Code sets out federal criminal offenses, as well as matters related to the operation of the
federal criminal justice system. See 18 U.S.C. §§ 2 et seq. And 10 U.S.C. § 921 – Art. 121 is a
provision of the Uniform Code of Military Justice and also a criminal statute. Generally, crimes

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

2:22-cv-08367-ODW (KSx)

Date

Title

Jose Apollo Sr. v. Arieta Apollo et al.

November 21, 2022

are prosecuted by the government, not by private parties. A private individual may bring suit
under a federal criminal statute only when Congress specifically intended to create a private
right of action. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283–84 (2002); In re Digimarc Corp.
Derivative Litig., 549 F.3d 1223, 1229–30 (9th Cir. 2008). Here, Plaintiff cannot bring claims
under the provisions he cites because they are federal statutes that do not confer private rights of
action. Accordingly, Plaintiff’s asserted fraud and larceny claims would fail as a matter of law
and thus as a basis for federal subject matter jurisdiction. Further, the obvious nature of this
lack of legal merit renders Plaintiff’s claims frivolous, an additional basis for dismissal. See
28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
Accordingly, Plaintiff is ORDERED to SHOW CAUSE, in writing only, to be received
by the Court no later than December 21, 2022, for why this action should not be dismissed
without prejudice for lack of subject matter jurisdiction and failure to state a claim. Failure to
timely respond to this order shall result in dismissal of the case without prejudice, without
further warning.
IT IS SO ORDERED.
:
Initials of Preparer

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