Powell v. Darling

Filing 12

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 5/22/2017 ORDERING that the 8 Motion to Dismiss is DENIED without prejudice to renewal. IT IS HEREBY RECOMMENDED that defendant's 2 Motion to Proceed IFP be denied. This matter be summarily remanded to the Placer County Superior Court. Motion referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL POWELL,

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Plaintiff,

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No. 2:17-cv-0392 KJM DB PS

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

TOMERY DARLING,

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Defendant.

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On February 22, 2017, defendant Tomery Darling filed a notice of removal of this action

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from the Placer County Superior Court along with an application to proceed in forma pauperis.

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(ECF Nos. 1 & 2.)1 Defendant Darling is proceeding pro se. Accordingly, the matter has been

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referred to the undersigned for all purposes encompassed by Local Rule 302(c)(21).
On February 27, 2017, the undersigned issued an order to show cause ordering defendant

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to show cause in writing within twenty-one days as to why this action should not be summarily

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remanded to the Placer County Superior Court due to a lack of subject matter jurisdiction. (ECF

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No. 3.) The twenty-one day period has passed. Although defendant has filed motions to vacate

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judgment and dismiss, defendant has not responded to the February 27, 2017 order to show cause.

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(ECF Nos. 4, 6, 8.)

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Core issues in the Placer County case involve divorce and child custody.
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Jurisdiction is a threshold inquiry that must precede the adjudication of any case before

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the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d

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1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may adjudicate

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only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,

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377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992). “Federal courts are presumed

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to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis,

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4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

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546 (1986)).

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Lack of subject matter jurisdiction may be raised by the court at any time during the

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proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir.

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1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has

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subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the

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obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v.

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Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court

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cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380.

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It is well established that the statutes governing removal jurisdiction must be “strictly

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construed against removal.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.

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1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)); see also Syngenta

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Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002); Provincial Gov’t of Martinduque v. Placer

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Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). “Federal jurisdiction must be rejected if there

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is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564,

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566 (9th Cir. 1992). “‘The burden of establishing federal jurisdiction falls on the party invoking

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removal.’” Harris v. Provident Life & Accident Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994)

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(quoting Gould v. Mut. Life Ins. Co., 790 F.2d 769, 771 (9th Cir.1986)); see also Provincial

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Gov’t of Martinduque, 582 F.3d at 1087.

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The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer

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“federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be

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conferred by federal statutes regulating specific subject matter. “[T]he existence of federal
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jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to

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those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d

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1108, 1113 (9th Cir. 2000).

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District courts have diversity jurisdiction only over “all civil actions where the matter in

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controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action

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is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a

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foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are

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additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different

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States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be

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a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss,

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797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between

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the parties-each defendant must be a citizen of a different state from each plaintiff.” In re

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Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008).

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Moreover, the domestic relations exception “divests the federal courts of power to issue

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divorce, alimony and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703

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(1992). “Even when a federal question is presented, federal courts decline to hear disputes which

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would deeply involve them in adjudicating domestic matters.” Thompson v. Thompson, 798 F.2d

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1547, 1558 (9th Cir.1986), aff’d, 484 U.S. 174 (1988); see also Tree Top v. Smith, 577 F.2d 519

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(9th Cir. 1978) (declining to exercise jurisdiction over habeas petition seeking custody of child

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who had been adopted by others). In this regard, courts “traditionally decline to exercise

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jurisdiction in domestic relations cases when the core issue involves the status of parent and child

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or husband and wife.” Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987); see also Peterson v.

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Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) (same). “For that matter, the whole subject of

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domestic relations and particularly child custody problems is generally considered a state law

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matter.” Peterson, 708 F.2d at 466.

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Here, it appears that the court does not have federal question or diversity jurisdiction over

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this action. Moreover, the core issue involved in this action concerns state law matters pertaining

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to divorce and child custody. (ECF No. 1 at 4; ECF No. 11 at 6-8.)
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Accordingly, IT IS HEREBY ORDERED that the April 24, 2017 motion to dismiss (ECF
No. 8) is denied without prejudice to renewal.2

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Also, IT IS HEREBY RECOMMENDED that:

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1. Defendant’s February 22, 2017 motion to proceed in forma pauperis (ECF No. 2) be

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denied; and

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2. This matter be summarily remanded to the Placer County Superior Court.

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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.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 22, 2017

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DLB:6
DB/orders/orders.pro se/powell0392.jx.f&rs

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In the event the assigned District Judge does not adopt these findings and recommendations,
defendant may re-notice the motion to dismiss for hearing before the undersigned.
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