Dorsett v. DeSanto et al

Filing 19

ORDER GRANTING MOTION TO DISMISS BASED ON LACK OF SUBJECT MATTER JURISDICTION by Judge Jon S. Tigar granting 12 Motion to Dismiss for Lack of Jurisdiction. (Attachments: # 1 Certificate/Proof of Service) (wsn, COURT STAFF) (Filed on 1/31/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DANIEL LEE DORSETT, 7 Plaintiff, 8 v. 9 DEANNE DESANTO, et al., 10 Defendants. 11 United States District Court Northern District of California Case No. 16-cv-05802-JST ORDER GRANTING MOTION TO DISMISS BASED ON LACK OF SUBJECT MATTER JURISDICTION Re: ECF No. 12 12 Before the Court is Defendants‟ motion to dismiss for lack of subject matter jurisdiction 13 and for failure to state a claim in light of the litigation privilege provided for by California Civil 14 Code § 47(b). ECF No. 12. The Court will grant the motion.1 15 I. BACKGROUND AND PROCEDURAL HISTORY On October 31, 2016, Daniel Dorsett filed an amended complaint against Deanne DeSanto 16 17 and Rachael Zeiph alleging, in essence, common law libel. ECF No. 9 at 1. He alleges that 18 Defendants published false statements about him in an email. Id. On December 7, 2016 the 19 Defendants filed a joint motion to dismiss Plaintiff‟s amended complaint for lack of jurisdiction 20 under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Federal Rule 21 of Civil Procedure 12(b)(6) because the statements Defendants made about Mr. Dorsett are 22 privileged under California Civil Code § 47(b). ECF No. 12. 23 II. LEGAL STANDARD “Federal courts are courts of limited jurisdiction. They possess only that power authorized 24 25 by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S 375, 377 26 (1994). Federal courts are presumed to lack jurisdiction unless the contrary appears affirmatively 27 1 28 Because the Court concludes that it is appropriate to decide this motion without oral argument, Civ. L.R. 7-1(b), the hearing scheduled for February 9, 2017 is vacated. from the record. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). Federal 2 courts have a duty to examine jurisdiction sua sponte before proceeding to the merits of a case, 3 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999), “even in the absence of a challenge 4 from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Under 28 U.S.C. § 1331, 5 district courts have federal question jurisdiction over civil actions arising under the United States 6 Constitution, laws or treaties of the United States. The Supreme Court has stated, “We have long 7 held that „[t]he presence or absence of federal-question jurisdiction is governed by the well 8 pleaded complaint rule, which provides that federal jurisdiction exists only when a federal 9 question is presented on the face of the plaintiff‟s properly pleaded complaint.‟” Rivet v. Regions 10 Bank of La., 522 U.S. 470, 475 (1998) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)). 11 United States District Court Northern District of California 1 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) may challenge 12 jurisdiction facially or factually. Fed. R. Civ. P. 12(b)(1). In a facial attack, the challenger asserts 13 that the allegations contained in a complaint are insufficient on their face to invoke federal 14 jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation 15 omitted). In resolving a facial attack, the court assumes that the allegations are true and draws all 16 reasonable inferences in the plaintiff's favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 17 2004) (citations omitted). 18 A complaint must also contain “a short and plain statement of the claim showing that the 19 pleader is entitled to relief” to “give the defendant fair notice of what the ... claim is and the 20 grounds upon which it rests.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 21 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 22 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 23 662, 678 (2009) (internal quotation marks omitted). “A claim has facial plausibility when the 24 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 25 defendant is liable for the misconduct alleged.” Id. The Court must “accept all factual allegations 26 in the complaint as true and construe the pleadings in the light most favorable to the nonmoving 27 party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Dismissal can be based on the 28 lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 2 1 theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533–34 (9th Cir. 1984). “The 2 tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals 3 of a cause of action's elements, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 4 U.S. 662, 663 (2009). Where amending the complaint would be “futile,” the Court may dismiss 5 the complaint with prejudice. See White v. Square, 2016 WL 4791748, at *4 (N.D. Cal. Sep. 14, 6 2016). 7 III. Dorsett‟s amended complaint alleges a cause of action for libel. To the extent that Plaintiff 8 9 DISCUSSION may be relying on state authority, state law cannot create federal question jurisdiction. Moreover, none of the federal statutes or constitutional protections Plaintiff cites creates a private cause of 11 United States District Court Northern District of California 10 action against private individuals for libel. The Supreme Court has clearly stated that 12 “[d]efamation, by itself, is a tort actionable under the laws of most States, but not a constitutional 13 deprivation.” Siegert v. Gilley, 500 U.S. 226, 233 (1991). The cases Plaintiff cites as “case law 14 examples,” with the exception of Siegert, were based on diversity jurisdiction. See Ollman v. 15 Evans, 479 F. Supp. 292 (D.D.C. 1979) (“This Court has jurisdiction under 28 U.S.C. § 1332.”); 16 Lewis v. Time Inc., 710 F.2d 549, 551 (9th Cir. 1983) (noting removal to federal district court 17 based on diversity). Plaintiff also cites to 28 U.S.C. § 4101. While 28 U.S.C. § 4101 defines “defamation,” it 18 19 does not provide for jurisdiction in federal district court in suits brought by private citizens against 20 private citizens of the same state. The section was enacted to make “foreign defamation 21 judgments unenforceable in the United States unless it can be shown that such judgments” are 22 valid in light of the First Amendment, and is inapplicable in this case. 30 Am. Jur. 2d Executions, 23 Etc., Defamation judgments, § 731.10. In addition, Plaintiff cites 47 U.S.C. § 230, which relates 24 to providers of interactive computer services and is also irrelevant. Plaintiff has failed to establish jurisdiction in this Court. Accordingly, Plaintiff‟s claim 25 26 must be dismissed.2 27 2 28 As jurisdiction is lacking, the Court need not address Defendants‟ contention that the allegedly libelous statements were privileged. 3 CONCLUSION 1 2 3 4 5 Plaintiff‟s complaint is dismissed for lack of subject matter jurisdiction. Because amendment would be futile, the dismissal is without leave to amend. IT IS SO ORDERED. Dated: January 31, 2017 6 7 8 ______________________________________ JON S. TIGAR United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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