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