Essex v. Georgi
Filing
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ORDER DISMISSING CASE. Court dismisses the action in its entirety without prejudice for lack of subject-matter jurisdiction. If Pla can correct the deficiencies in the complaint, including but not limited to identifying specific federal statues invok ed, he may file a amended complaint by 8/27/2014. If Pla intends to proceed with this action, he must also pay the required filing fee. Court terminates as moot Pla's 2 Motion to Appoint Counsel. Signed by Judge Cynthia Bashant on 8/6/2014.(All non-registered users served via U.S. Mail Service)(jah)(jrd)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JASON DOUGLAS ESSEX,
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Case No. 14-cv-1839-BAS(BLM)
Plaintiff,
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v.
ORDER DISMISSING ACTION
WITHOUT PREJUDICE FOR
LACK OF SUBJECT MATTER
JURISDICTION
KENT S. “STEVEN” GEORGI,
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Defendant.
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On August 5, 2014, Plaintiff Jason Douglas Essex, proceeding pro se, filed a
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handwritten complaint against Defendant Kent S. “Steven” Georgi, apparently
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asserting claims for identity theft and fraud. According to his civil cover sheet,
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Plaintiff filed this action based upon federal question jurisdiction under 28 U.S.C.
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1337.
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For the following reasons, the Court finds that Plaintiff’s complaint is facially
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deficient and DISMISSES WITHOUT PREJUDICE this action in its entirety for
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lack of subject matter jurisdiction.
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//
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I.
LEGAL STANDARD
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“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life
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Ins. Co. of Am., 511 U.S. 375, 377 (1994). “They possess only that power authorized
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by Constitution or a statute, which is not to be expanded by judicial decree.” Id.
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(internal citations omitted). “It is to be presumed that a cause lies outside this limited
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jurisdiction and the burden of establishing the contrary rests upon the party asserting
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jurisdiction.” Id. (internal citations omitted); see also Abrego Abrego v. The Dow
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Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006).
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“Subject matter jurisdiction based upon diversity of citizenship requires that no
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defendant have the same citizenship as any plaintiff.” Tosco Corp. v. Communities for
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a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), abrogated on other
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grounds by Hertz Corp v. Friend, 130 S. Ct. 1181 (2010). Alternatively, federal
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district courts also 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. “A plaintiff
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suing in federal court must show in his pleading, affirmatively and distinctly, the
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existence of whatever is essential to federal jurisdiction, and, if he does not do so, the
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court . . . on discovering the [defect], must dismiss the case, unless the defect be
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corrected by amendment.” Tosco, 236 F.3d at 499 (quoting Smith v. McCullough, 270
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U.S. 456, 459 (1926)).
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Although there has not been a request for dismissal, it is well-established that “a
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district court’s duty to establish subject matter jurisdiction is not contingent upon the
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parties’ arguments.” See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360
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F.3d 960, 966 (9th Cir. 2004). Courts may consider the issue sua sponte. Demery v.
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Kupperman, 735 F.2d 1139, 1149 n.8 (9th Cir. 1984). Indeed, the Supreme Court has
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emphasized that “district courts have an ‘independent obligation to address subject-
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matter jurisdiction sua sponte.’” Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S.
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567, 593 (2004) (quoting United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 972
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(E.D. Cal. 2004)).
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II.
ANALYSIS
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Plaintiff’s civil cover sheet indicates that he is pursuing claims under 28 U.S.C.
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§ 1337, which provides jurisdictional requirements for civil actions or proceedings
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arising from any Congressional Act “regulating commerce or protecting trade and
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commerce against restraints and monopolies.” 28 U.S.C. § 1337(a). He also describes
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his claims, at least as best as this Court can decipher, as scalping, identity theft, fraud,
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mail fraud, business fraud, or an illegible claim involving a liquor license. None of
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these claims is reflected in the complaint except identity theft and fraud. Section 1337
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is not even mentioned.
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Plaintiff’s identify-theft claim is not actually asserted anywhere in the body of
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the complaint, but rather the words are merely floating on the bottom-right corner of
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the first page of the complaint without any association to any allegations. (Compl.
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1:24–25.) The fraud claim apparently arises from allegations that Defendant closed an
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email account. (Compl. 2:8–10.) The Court also reviewed the over 550 pages of
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exhibits—which mostly consist of screenshots of websites—attached to the complaint
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and was unable to identify any other claims.
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Upon reviewing the complaint and voluminous exhibits, Plaintiff’s action does
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not arise from any identifiable commerce or antitrust regulation within the scope of 28
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U.S.C. § 1337. Plaintiff also fails to provide any federal law related to the claims that
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he describes in the civil cover sheet. Therefore, the Court finds that it lacks subject
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matter jurisdiction because there is no federal question presented in this action. See 28
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U.S.C. § 1331. Similarly, had Plaintiff attempted to invoke this Court’s diversity
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jurisdiction, the Court would reach the same conclusion—that it lacks subject matter
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jurisdiction—because Plaintiff fails to demonstrate that he satisfies the complete-
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diversity-of-citizenship and amount-in-controversy requirements under 28 U.S.C. §
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1332. See also Tosco, 236 F.3d at 499.
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//
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//
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III.
CONCLUSION & ORDER
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Because Plaintiff does not assert a claim that presents a federal question as
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required by 28 U.S.C. § 1331, and because he fails to allege facts necessary to establish
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diversity jurisdiction as required by 28 U.S.C. § 1332, the Court DISMISSES
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WITHOUT PREJUDICE this action in its entirety for lack of subject-matter
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jurisdiction. See Tosco, 236 F.3d at 499. If Plaintiff can correct these deficiencies in
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the complaint, including but not limited to explicitly identifying specific federal
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statutes invoked, he may file an amended complaint no later than August 27, 2014. See
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28 U.S.C. § 1653. Furthermore, if Plaintiff intends to proceed with this action, he must
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also pay the required filing fee.
In light of the dismissal, the Court also TERMINATES AS MOOT Plaintiff’s
motion to appoint counsel. (ECF No. 2.)
IT IS SO ORDERED.
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DATED: August 6, 2014
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Hon. Cynthia Bashant
United States District Judge
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