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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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YO HAN KIM,
Plaintiff,

United States District Court
Northern District of California

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Case No. 16-cv-07220 NC
ORDER TO SHOW CAUSE RE:
FEDERAL JURISDICTION

v.
STATE OF CALIFORNIA, et al.,
Defendants.

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Yo Han Kim sues defendants for trespass and “trespass on the case.” Dkt. No. 1.

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The complaint does not refer to any federal cause of action. In addition, Kim refers to an

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underlying state action, and appears to be attempting to remove that action into federal

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court. The Court ORDERS Kim to show cause by January 23, 2017, why this case should

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not be dismissed for lack of jurisdiction. In addition, the Court received what purports to

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be a temporary restraining order, allegedly signed by superior court judge. Dkt. No. 5.

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The Court is unclear what this document is. Thus, by January 23, 2017, Kim must provide

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a further explanation as to what the document is and what he expects the court to do with

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it. Finally, the Court ORDERS Kim to appear on February 1, 2017 at 1:00 p.m. in

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courtroom 7 to discuss the documents presented to the court.

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Federal courts are courts of limited jurisdiction and are presumptively without

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jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

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Removal of a state court action to federal court is appropriate only if the federal court
Case No. 16-cv-07220 NC

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would have had original subject matter jurisdiction over the suit. See 28 U.S.C. § 1441(a).

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Federal courts have original jurisdiction over “all civil actions arising under the

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Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, and over “all civil

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actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is

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between citizens of different states,” 28 U.S.C. § 1332(a).

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In the absence of diversity jurisdiction, removal to federal court is only proper when

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“a federal question is presented on the face of the plaintiff’s properly pleaded complaint.”

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Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). “Federal jurisdiction cannot be

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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

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United States District Court
Northern District of California

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federal court may dismiss an action on its own motion if it finds that it lacks subject matter

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jurisdiction over the action. Fielder v. Clark, 714 F.2d 77, 78-79 (9th Cir. 1983); see also

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Fed. R. Civ. P. 12(h)(3).

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For additional guidance, defendant may refer to the Court’s Pro Se Handbook,

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available on the Court’s website at http://www.cand.uscourts.gov/prosehandbook, or

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contact the Federal Pro Se Program at the San Jose Courthouse, which provides

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information and limited-scope legal advice to pro se litigants in civil cases. The Federal

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Pro Se Program is available by appointment and on a drop-in basis. The Federal Pro Se

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Program is available at Room 2070 in the San Jose United States Courthouse (Monday to

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Thursday 1:00 – 4:00 pm), or The Law Foundation of Silicon Valley, 152 N. 3rd Street,

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3rd Floor, San Jose, CA (Monday to Thursday 9:00 am – 12:00 pm), or by calling (408)

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297-1480.

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IT IS SO ORDERED.

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Dated: January 10, 2017

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_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 16-cv-07220 NC

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