Sharp v. Sharp et al

Filing 4

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/19/17 Recommending that the action be dismissed for lack of subject matter jurisdiction re 1 Complaint filed by Calysta Sharp. The MOTION to PROCEED IN FORMA PAUPERIS 2 be DENIED AS MOOT. The Clerk of Court be directed to close this case. These Findings and Recommendations are submitted to U.S. District Judge John A. Mendez. 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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CALYSTA SHARP,

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No. 2:17-cv-0460-JAM-KJN PS

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

DAVID REYES SHARP, et al.,

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Defendants.

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On March 2, 2017, plaintiff Calysta Sharp filed a complaint along with a motion to
proceed in forma pauperis. (ECF Nos. 1, 2.)

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Plaintiff’s complaint is subject to screening in accordance with 28 U.S.C. § 1915.

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Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any time if it determines

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that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a

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claim on which relief may be granted, or seeks monetary relief against an immune defendant.

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A federal court also 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, plaintiff utilized a form complaint. Although she completed the names of the

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plaintiff and defendants, and checked the boxes for federal question and diversity of citizenship

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jurisdiction, she entirely failed to identify a specific federal claim; failed to explain why the

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parties are diverse (especially when plaintiff and at least some defendants reside in California);

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and failed to assert the amount in controversy. Indeed, plaintiff left the substantive portions of

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the form complaint empty, and failed to allege any facts in support of her claims. As such,

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plaintiff has not satisfied her burden to show that this court has federal subject matter jurisdiction.

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Consequently, on March 16, 2017, the court issued an order requiring plaintiff, within 21

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days, to show cause why this action should not be dismissed for lack of federal subject matter

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jurisdiction. (ECF No. 3.) Plaintiff was specifically cautioned that failure to timely respond

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would be deemed plaintiff’s consent to dismissal, and would result in a recommendation that the

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action be dismissed for lack of subject matter jurisdiction. (Id.) Although the applicable deadline

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has now passed, plaintiff entirely failed to respond to the order to show cause or even request an

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extension to comply.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. The action be DISMISSED for lack of subject matter jurisdiction.

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2. The motion to proceed in forma pauperis in this court (ECF No. 2) be DENIED AS

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MOOT.

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

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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 RECOMMENDED.
Dated: April 19, 2017

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