Pagah v. Edwards
Filing
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ORDER Dismissing the Action for Lack of Subject Matter Jurisdiction; Denying Plaintiff's 2 Motion for Leave to Proceed in forma pauperis; Denying 3 Motion to Appoint Counsel. Plaintiff's Complaint is dismissed without prejudice. Signed by Judge Irma E. Gonzalez on 11/28/2012. (All non-registered users served via U.S. Mail Service)(rlu)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MARK* M. PAGAH,
CASE NO. 12-CV-2719-IEG (JMA)
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Plaintiff,
ORDER:
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(1) DISMISSING THE ACTION
FOR LACK OF SUBJECT
MATTER JURISDICTION;
v.
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(2) DENYING MOTION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS [DOC. NO. 2];
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DR. RUSSELL P. EDWARDS,
AND
Defendant.
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(3) DENYING MOTION TO
APPOINT COUNSEL [DOC NO. 3]
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Mark M. Pagah (“Plaintiff”) has filed a civil action alleging medical malpractice against
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Dr. Russell P. Edwards (“Defendant”). [Doc. No. 1, Compl.] Plaintiff has not paid the $350 civil
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filing fee required to commence this action; rather, he has filed a motion to proceed In Forma
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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. [Doc. No. 2, Mot. for Leave to Proceed IFP (“IFP
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Mot.”)]. Plaintiff has also filed a motion to appoint counsel. [Doc. No. 3, Mot. to Appoint
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Counsel.]
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Before deciding Plaintiff’s motions, the Court must first determine whether it has subject
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matter jurisdiction over this action. “The Supreme Court has instructed lower courts to resolve
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jurisdictional issues before reaching the merits of a case.” Rivera v. R.R. Retirement Bd., 262
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F.3d 1005, 1008 (9th Cir. 2001) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94
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(1998) (rejecting doctrine of “hypothetical jurisdiction”)). “Without jurisdiction the court cannot
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proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist,
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the only function remaining to the court is that of announcing the fact and dismissing the cause.”
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Steel Co., 523 U.S. at 94 (internal quotation marks omitted). Because the Court “cannot proceed
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at all,” id., if it lacks jurisdiction, the Court must first determine if it has subject matter jurisdiction
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before ruling on Plaintiff’s motions for leave to proceed IPF and to appoint counsel.
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Federal courts are courts of limited jurisdiction and as such “possess only that power
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authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen
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v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Lack of
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subject matter jurisdiction can be raised at any time by any party or sua sponte by the court. Csibi
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v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982).
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The court must presume that a case lies outside of its limited jurisdiction, and the burden of
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establishing jurisdiction is on the party asserting it. Id. Federal courts may exercise jurisdiction if
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the complaint presents a federal question or if the requirements for diversity jurisdiction are met.
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See 28 U.S.C. § 1331; 28 U.S.C. § 1332.
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“[D]istrict courts shall have original jurisdiction of all civil actions arising under the
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Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The “federal question”
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must be disclosed on the face of the complaint. Sparta Surgical Corp. v. Nat’l Ass’n of Securities
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Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998). Under the longstanding well-pleaded
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complaint rule, this means that jurisdiction is proper “only when the plaintiff’s statement of his
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own cause of action shows that it is based upon [federal law].” Vaden v. Discover Bank, 556 U.S.
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49, 60 (2009) (internal quotation omitted). Plaintiff attempts to assert a medical malpractice
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action against Defendant. [Doc. No. 1, Compl.] However, the face of Plaintiff’s complaint does
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not show that his action is based upon federal law. Therefore, the Court does not have subject
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matter jurisdiction on the basis of a federal question.
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“The federal court's basic diversity jurisdiction extends to ‘all civil actions where the
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matter in controversy exceeds . . . $75,000 . . . and is between ... [c]itizens of different States.”
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Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894 (9th Cir. 2006) (quoting 28 U.S.C. §
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1332(a)(1)). Plaintiff does not specifically allege the citizenship of either himself or Defendant.
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He only states in his pleadings that his address is 6650 Amherst Street, Unit 8B, San Diego,
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California. [Doc. No. 1, Compl. at 1.] He also states that Defendant’s address is 3969 4th
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Avenue, Suite 301, San Diego, California. [Id. at 28, 36, 39.] Because Plaintiff has not alleged
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facts sufficient to satisfy his burden to support a finding that the citizenship of the parties is
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diverse, the Court finds that it lacks diversity jurisdiction to hear the matter.
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Because Plaintiff has not asserted federal question jurisdiction or diversity jurisdiction, the
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Court DISMISSES the action without prejudice for lack of subject matter jurisdiction. Because
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the Court lacks subject matter jurisdiction, it DISMISSES as moot Plaintiff’s motions for leave to
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proceed IFP and to appoint counsel. [Doc. Nos. 2, 3.]
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IT IS SO ORDERED.
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DATED: November 28, 2012
_____________________________
IRMA E. GONZALEZ
United States District Judge
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