Khan v. U.S. Bank National Association et al

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/6/14 RECOMMENDING that this Action be dismissed for lack of subject matter jurisdiction re 1 Complaint. These Findings and Recommendation are submitted to U.S. District Judge Kimberly J. Mueller; Objections to these F&R due within fourteen days.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KHALID KHAN,

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No. 2:13-cv-2596 KJM CKD PS
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

U.S. BANK NATIONAL ASSOCIATION,
et al.,
Defendants.

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Plaintiff is proceeding in this action pro se. In the complaint, plaintiff complains about an

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allegedly wrongful foreclosure. Plaintiff alleges only state law claims. The complaint does not

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allege a basis for subject matter jurisdiction in this court. The federal courts are courts of limited

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jurisdiction. In the absence of a basis for federal jurisdiction, plaintiff’s claims cannot proceed in

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this venue. Because there is no basis for federal subject matter jurisdiction evident in the

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complaint, plaintiff was ordered to show cause why this action should not be dismissed. Plaintiff

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has filed a response in which he alleges jurisdiction is proper under 42 U.S.C. § 1983. Upon

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review of plaintiff’s response to the order to show cause, it appears this court lacks subject matter

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jurisdiction under both 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1332 (diversity).

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To the extent plaintiff alleges federal question jurisdiction is proper because plaintiff

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pleads a violation of his civil rights, such a claim cannot lie in that defendants do not appear to be
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state actors. The Civil Rights Act provides as follows:

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. To state a claim under section 1983, a plaintiff must allege that: (1) defendant

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was acting under color of state law at the time the complained of act was committed; and (2)

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defendant’s conduct deprived plaintiff of rights, privileges or immunities secured by the

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Constitution or laws of the United States. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48

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(1988). Here, plaintiff alleges that the defendants are banking associations and their subsidiaries

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which wrongfully foreclosed on plaintiff’s property. There is no allegation of conduct by any

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defendant that can be fairly characterized as state action.

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With respect to diversity jurisdiction, plaintiff alleges defendant U.S. Bank N.A. has its

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principal place of business in the State of California. Plaintiff is a resident of the State of

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California. Under these circumstances, diversity jurisdiction is lacking.

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From the allegations of the complaint, the court cannot discern any proper basis for

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subject matter jurisdiction. Plaintiff has been afforded an opportunity to show this court has

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subject matter jurisdiction and has failed to establish a proper basis.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of
subject matter jurisdiction.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 6, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 khan-usbank2596.nosmj.57

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