Kim v. State of California et al

Filing 7

ORDER TO SHOW CAUSE RE: FEDERAL JURISDICTION. Kim must show cause why this case should not be dismissed for lack of jurisdiction by 1/23/2017. Order to Show Cause Hearing set for 2/1/2017 01:00 PM. Signed by Judge Nathanael Cousins on 1/10/2017. (Attachments: # 1 Certificate/Proof of Service)(lmh, COURT STAFF) (Filed on 1/10/2017)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 YO HAN KIM, Plaintiff, United States District Court Northern District of California 11 12 13 14 Case No. 16-cv-07220 NC ORDER TO SHOW CAUSE RE: FEDERAL JURISDICTION v. STATE OF CALIFORNIA, et al., Defendants. 15 16 Yo Han Kim sues defendants for trespass and “trespass on the case.” Dkt. No. 1. 17 The complaint does not refer to any federal cause of action. In addition, Kim refers to an 18 underlying state action, and appears to be attempting to remove that action into federal 19 court. The Court ORDERS Kim to show cause by January 23, 2017, why this case should 20 not be dismissed for lack of jurisdiction. In addition, the Court received what purports to 21 be a temporary restraining order, allegedly signed by superior court judge. Dkt. No. 5. 22 The Court is unclear what this document is. Thus, by January 23, 2017, Kim must provide 23 a further explanation as to what the document is and what he expects the court to do with 24 it. Finally, the Court ORDERS Kim to appear on February 1, 2017 at 1:00 p.m. in 25 courtroom 7 to discuss the documents presented to the court. 26 Federal courts are courts of limited jurisdiction and are presumptively without 27 jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 28 Removal of a state court action to federal court is appropriate only if the federal court Case No. 16-cv-07220 NC 1 would have had original subject matter jurisdiction over the suit. See 28 U.S.C. § 1441(a). 2 Federal courts have original jurisdiction over “all civil actions arising under the 3 Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, and over “all civil 4 actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is 5 between citizens of different states,” 28 U.S.C. § 1332(a). 6 In the absence of diversity jurisdiction, removal to federal court is only proper when 7 “a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 8 Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). “Federal jurisdiction cannot be 9 predicated on an actual or anticipated defense . . . [n]or can federal jurisdiction rest upon an actual or anticipated counterclaim. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). A 11 United States District Court Northern District of California 10 federal court may dismiss an action on its own motion if it finds that it lacks subject matter 12 jurisdiction over the action. Fielder v. Clark, 714 F.2d 77, 78-79 (9th Cir. 1983); see also 13 Fed. R. Civ. P. 12(h)(3). 14 For additional guidance, defendant may refer to the Court’s Pro Se Handbook, 15 available on the Court’s website at, or 16 contact the Federal Pro Se Program at the San Jose Courthouse, which provides 17 information and limited-scope legal advice to pro se litigants in civil cases. The Federal 18 Pro Se Program is available by appointment and on a drop-in basis. The Federal Pro Se 19 Program is available at Room 2070 in the San Jose United States Courthouse (Monday to 20 Thursday 1:00 – 4:00 pm), or The Law Foundation of Silicon Valley, 152 N. 3rd Street, 21 3rd Floor, San Jose, CA (Monday to Thursday 9:00 am – 12:00 pm), or by calling (408) 22 297-1480. 23 24 IT IS SO ORDERED. 25 26 Dated: January 10, 2017 27 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 28 Case No. 16-cv-07220 NC 2

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