Kumar v. Naiman et al

Filing 9

ORDER AND FINDINGS and RECOMMENDATIONS ORDERING signed by Magistrate Judge Kendall J. Newman on 02/02/16 ORDERING that the 6 Motion to Dismiss, liberally construed as a motion for default judgment, is DENIED without prejudice and RECOMMENDING that this action be dismissed without prejudice for lack of federal subject matter jurisiction. Referred to Judge Kimberly J. Mueller; Objections to these F&Rs due within 14 days. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ASHWANI LATA KUMAR &
RAJENDRA KUMAR,
Plaintiffs,

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ORDER AND
v.

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No. 2:15-cv-2029-KJM-KJN PS

FINDINGS AND RECOMMENDATIONS
RANDALL D. NAIMAN, et al.,
Defendants.

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Plaintiffs Ashwani Lata Kumar and Rajendra Kumar, proceeding without counsel,

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commenced this action on September 28, 2015, and paid the filing fee. (ECF No. 1.) Plaintiffs’

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130-page complaint, which names 18 defendants and consists of numerous exhibits, is somewhat

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confusing, but appears to allege that defendants wrongfully foreclosed on plaintiffs’ real property

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located on Tierra Green Way in Sacramento, California, and subsequently sought to unlawfully

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evict plaintiffs from that property.1 Plaintiffs contend that defendants have refused to respond to

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plaintiffs’ requests for defendants to demonstrate that they are the true creditors or holders of the

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note with proper authority to foreclose. Plaintiffs assert claims for tort, trespass, and restoration

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of property. They essentially seek a deed of full reconveyance of the property as well as

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The named defendants appear to be institutions, attorneys, and/or other individuals somehow
involved with the foreclosure of plaintiff’s real property and the subsequent eviction proceedings.
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compensatory damages for alleged personal injuries in the amount of $375,000,000.00.

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On the same day that the complaint was filed, plaintiffs also filed a motion for a

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temporary restraining order (“TRO”), seeking to restrain defendants from evicting plaintiffs from

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the property. (ECF No. 2.) Judge Mueller denied the motion that same day based on lack of

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subject matter jurisdiction. (ECF No. 5.) Since then, there was no further docket activity in the

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case until the January 28, 2016 status conference.

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Despite not having filed a court-ordered status report, plaintiffs appeared in person at that

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January 28, 2016 status conference. None of the defendants appeared. In light of plaintiffs’ pro

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se status and their appearance at the status conference, the court declines to impose any sanctions

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for failure to file the required status report.

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At the status conference, plaintiffs represented that they had previously filed a bankruptcy

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action, but that the stay in the bankruptcy action had been lifted. The court’s independent review

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of the bankruptcy court docket confirms that a bankruptcy action was commenced by plaintiff

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Rajendra Kumar on June 19, 2015; that the automatic bankruptcy stay was vacated with respect to

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plaintiffs’ Tierra Green Way property on September 20, 2015 (shortly before the district court

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action was filed on September 28, 2015); and that the bankruptcy case was closed on October 13,

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2015. See Case No. 15-24945 (Bankr. E.D. Cal. 2015). Therefore, there does not appear to be

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any current bankruptcy stay that applies to this action.

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The court also discussed the status of service of process with plaintiffs. Plaintiffs

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indicated that they had filed proofs of service and additional briefing with the court the day before

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the status conference, but those filings had not yet been docketed by the Clerk of Court at the time

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of the status conference. The court indicated that it would review plaintiffs’ proofs of service and

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additional briefing, and then issue an appropriate order.

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Plaintiffs’ proofs of service and additional briefing have now been docketed, and the court

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has carefully reviewed those filings. The additional briefing submitted with the proofs of service

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is styled as a “motion to dismiss,” but, when liberally construed, is actually a motion for default

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judgment, requesting dismissal of the case only after granting a deed of full reconveyance of the

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property, and damages for personal injuries, to plaintiffs. (See ECF No. 6-1.)
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The proofs of service filed show that plaintiffs have thus far only attempted service on 6

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of the 18 defendants. (ECF No. 6 at 26-32.) As an initial matter, it appears that service on at

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least some of the 6 defendants was deficient. For example, plaintiffs attempted to serve the in-

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state, California-based defendants by certified mail, return receipt requested, but it does not

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appear that any of those defendants returned an executed acknowledgement of receipt of

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summons as required by Cal. Civ. Proc. Code § 415.30. Moreover, even if those 6 defendants

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had been properly served, it would be inappropriate, given the risk of inconsistent judgments, for

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the court to enter a default judgment against such defendants in this multiple-defendant case until

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the matter has been adjudicated with respect to all defendants. See Nelson v. Chang (In re First

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T.D. & Inv., Inc.), 253 F.3d 520, 532 (9th Cir. 2001). As such, the court denies plaintiffs’ motion

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to dismiss, properly construed as a motion for default judgment, but without prejudice to its

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renewal at a later juncture, if appropriate.

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Although the time for service of process pursuant to Federal Rule of Civil Procedure 4(m)

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has now expired, the court would have been inclined to extend the time to properly complete

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service of process, particularly in light of plaintiffs’ pro se status. However, as Judge Mueller

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previously noted in denying plaintiffs’ motion for a TRO, plaintiffs’ action suffers from a much

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more fundamental defect—lack of federal subject matter jurisdiction.

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A federal court has an independent duty to assess whether federal subject matter

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jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v.

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Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had a duty

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to establish subject matter jurisdiction over the removed action sua sponte, whether the parties

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raised the issue or not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996).

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The court must sua sponte dismiss the case if, at any time, it determines that it lacks subject

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matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A federal district court generally has original

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jurisdiction over a civil action when: (1) a federal question is presented in an action “arising

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under the Constitution, laws, or treaties of the United States” or (2) there is complete diversity of

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citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a).

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In this case, there is no federal question jurisdiction. Even when liberally construed,

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plaintiffs’ complaint alleges only state law claims for tort, trespass, and restoration of property.

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To be sure, the civil cover sheet and amended civil cover sheet list a claim under a federal

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criminal statute, 18 U.S.C. § 242. (ECF Nos. 1-1, 7.) However, as Judge Mueller previously

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explained, that criminal statute provides no basis for civil liability, and plaintiffs, as private

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citizens, have no standing to prosecute criminal claims. Furthermore, there is no diversity of

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citizenship jurisdiction, because plaintiffs and at least some of the defendants were citizens of

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California at the time the action was filed.

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Therefore the court concludes that it lacks federal subject matter jurisdiction over the

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action, and that the case must be dismissed. However, such dismissal should be without

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prejudice, allowing plaintiffs to pursue their action in an appropriate state court. Indeed, in

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recommending dismissal of the action for lack of subject matter jurisdiction, the court expresses

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no opinion on the merits of plaintiffs’ claims.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. The action be DISMISSED WITHOUT PREJUDICE for lack of federal subject matter

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jurisdiction.

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2. The Clerk of Court be directed to close this case.

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IT IS ALSO HEREBY ORDERED that:

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1. Plaintiffs’ motion to dismiss, liberally construed as a motion for default judgment

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(ECF No. 6) is DENIED WITHOUT PREJUDICE.
2. All pleading, discovery, and motion practice in this action are stayed pending

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resolution of the findings and recommendations. Other than any objections to the

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findings and recommendations or non-frivolous motions for emergency relief, the

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court will not entertain or respond to any further motions or pleadings until the

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findings and recommendations are resolved.

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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 (14)

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days 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.” Any reply to the objections

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shall be served on all parties and filed with the court within fourteen (14) days after service of the

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objections. The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED AND RECOMMENDED.
Dated: February 2, 2016

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