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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL POWELL, 12 Plaintiff, 13 14 No. 2:17-cv-0392 KJM DB PS v. ORDER AND FINDINGS AND RECOMMENDATIONS TOMERY DARLING, 15 Defendant. 16 On February 22, 2017, defendant Tomery Darling filed a notice of removal of this action 17 18 from the Placer County Superior Court along with an application to proceed in forma pauperis. 19 (ECF Nos. 1 & 2.)1 Defendant Darling is proceeding pro se. Accordingly, the matter has been 20 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 21 22 to show cause in writing within twenty-one days as to why this action should not be summarily 23 remanded to the Placer County Superior Court due to a lack of subject matter jurisdiction. (ECF 24 No. 3.) The twenty-one day period has passed. Although defendant has filed motions to vacate 25 judgment and dismiss, defendant has not responded to the February 27, 2017 order to show cause. 26 (ECF Nos. 4, 6, 8.) 27 28 1 Core issues in the Placer County case involve divorce and child custody. 1 1 Jurisdiction is a threshold inquiry that must precede the adjudication of any case before 2 the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 3 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may adjudicate 4 only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 5 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992). “Federal courts are presumed 6 to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis, 7 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 8 546 (1986)). 9 Lack of subject matter jurisdiction may be raised by the court at any time during the 10 proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir. 11 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has 12 subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the 13 obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v. 14 Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court 15 cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380. 16 It is well established that the statutes governing removal jurisdiction must be “strictly 17 construed against removal.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 18 1979) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)); see also Syngenta 19 Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002); Provincial Gov’t of Martinduque v. Placer 20 Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). “Federal jurisdiction must be rejected if there 21 is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 22 566 (9th Cir. 1992). “‘The burden of establishing federal jurisdiction falls on the party invoking 23 removal.’” Harris v. Provident Life & Accident Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994) 24 (quoting Gould v. Mut. Life Ins. Co., 790 F.2d 769, 771 (9th Cir.1986)); see also Provincial 25 Gov’t of Martinduque, 582 F.3d at 1087. 26 The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer 27 “federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be 28 conferred by federal statutes regulating specific subject matter. “[T]he existence of federal 2 1 jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to 2 those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d 3 1108, 1113 (9th Cir. 2000). 4 District courts have diversity jurisdiction only over “all civil actions where the matter in 5 controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action 6 is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a 7 foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are 8 additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different 9 States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be 10 a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss, 11 797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between 12 the parties-each defendant must be a citizen of a different state from each plaintiff.” In re 13 Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008). 14 Moreover, the domestic relations exception “divests the federal courts of power to issue 15 divorce, alimony and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703 16 (1992). “Even when a federal question is presented, federal courts decline to hear disputes which 17 would deeply involve them in adjudicating domestic matters.” Thompson v. Thompson, 798 F.2d 18 1547, 1558 (9th Cir.1986), aff’d, 484 U.S. 174 (1988); see also Tree Top v. Smith, 577 F.2d 519 19 (9th Cir. 1978) (declining to exercise jurisdiction over habeas petition seeking custody of child 20 who had been adopted by others). In this regard, courts “traditionally decline to exercise 21 jurisdiction in domestic relations cases when the core issue involves the status of parent and child 22 or husband and wife.” Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987); see also Peterson v. 23 Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) (same). “For that matter, the whole subject of 24 domestic relations and particularly child custody problems is generally considered a state law 25 matter.” Peterson, 708 F.2d at 466. 26 Here, it appears that the court does not have federal question or diversity jurisdiction over 27 this action. Moreover, the core issue involved in this action concerns state law matters pertaining 28 to divorce and child custody. (ECF No. 1 at 4; ECF No. 11 at 6-8.) 3 1 2 Accordingly, IT IS HEREBY ORDERED that the April 24, 2017 motion to dismiss (ECF No. 8) is denied without prejudice to renewal.2 3 Also, IT IS HEREBY RECOMMENDED that: 4 1. Defendant’s February 22, 2017 motion to proceed in forma pauperis (ECF No. 2) be 5 denied; and 6 2. This matter be summarily remanded to the Placer County Superior Court. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served and filed within fourteen days after service of the objections. The parties are 13 advised that failure to file objections within the specified time may waive the right to appeal the 14 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: May 22, 2017 16 17 18 19 20 21 22 23 24 DLB:6 DB/orders/orders.pro se/powell0392.jx.f&rs 25 26 27 28 2 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. 4

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