Rojas et al v. Ygrene Energy Fund Inc. et al

Filing 7

Dismissal Without Prejudice for Lack of Subject Matter Jurisdiction. Signed by Judge Cathy Ann Bencivengo on 4/10/2018.(jjg)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 SOUTHERN DISTRICT OF CALIFORNIA MARTHA ROJAS and ROGER ROJAS, Case No.: 18-CV-579 CAB KSC Plaintiff, 9 10 v. 11 DISMISSAL WITHOUT PREJUDICE FOR LACK OF SUBJECT MATTER JURISDICTION YGRENE ENERGY FUND, INC. et al., 12 Defendant. 13 14 This matter is before the Court on an order to show cause as to subject matter 15 jurisdiction. The complaint alleges federal question jurisdiction based solely on a claim 16 for violation of Title 16, section 429.1, of the Code of Federal Regulations, and 17 supplemental jurisdiction over the eight state law claims. However, “[t]o acquire federal 18 jurisdiction, a plaintiff must assert a colorable right to a remedy under a particular federal 19 statute.” Carlson v. Coca-Cola Co., 483 F.2d 279, 280 (9th Cir. 1973). Title 16, section 20 429.1, of the Code of Federal Regulations was promulgated pursuant to the Federal Trade 21 Commission Act (the “FTCA”). See Part 429--Cooling-Off Period for Door-to-Door Sales: 22 Promulgation of Trade Regulations Rule and Statement of Its Basis and Purpose, 37 Fed. 23 Reg. 22934-35 (Oct. 26, 1972). 24 Carlson, 483 F.2d at 280; O’Donnell v. Bank of Am., Nat’l Ass’n, 504 Fed. Appx. 566, 568 25 (9th Cir. 2013) (“[T]he Federal Trade Commission Act . . . doesn’t create a private right of 26 action.”); 5 McCarthy on Trademarks and Unfair Competition § 27:119 (5th ed.) (“While 27 it has often been argued that a private right to sue for a violation of the FTC Act’s 28 prohibitions should be implied, the courts have consistently held that there is no such The FTCA does not create a private right of action. 1 18-CV-579 CAB KSC 1 private right to sue. That is, only the FTC, as a federal agency, has the power to issue cease 2 and desist orders, obtain civil penalties, or file suit for violation of the FTC Act.”). Thus, 3 “it follows that there is no private right of action to enforce the FTC’s promulgated 16 4 C.F.R. § 429.1.” Howard v. Burleson Servs., Inc., No. 616CV300ORL18TBS, 2017 WL 5 1862212, at *2 (M.D. Fla. May 8, 2017). If there is no private right of action to enforce 16 6 C.F.R. § 429.1, Plaintiffs have not asserted a colorable right to a remedy under a federal 7 statute, meaning the Court lacks subject matter jurisdiction over this lawsuit. 8 In their response to the Court’s order to show cause, Plaintiffs fail to cite to any 9 federal court cases holding that consumers have a private right of action under 16 C.F.R. § 10 429.1 or the FTCA in general. That regulations enacted pursuant to the FTCA provide 11 benefits or rights to consumers does not necessarily mean that consumers have a right to 12 sue to enforce such regulations, regardless of whether the relief sought is equitable or 13 monetary. Only the FTC has the power to file suit for violation of those regulations. See 14 5 McCarthy on Trademarks and Unfair Competition § 27:119 (5th ed.). 15 In sum, there is no private right of action to sue for violation of the FTC Act. This 16 prohibition includes regulations promulgated pursuant to the FTC Act. Plaintiffs cite to no 17 authority to the contrary. Plaintiffs first claim for violation of 16 C.F.R. § 429.1, therefore, 18 does not assert a colorable right to a remedy obtainable by Plaintiffs via this lawsuit and 19 cannot serve as a basis for federal question subject matter jurisdiction. Because Plaintiffs 20 do not assert any other federal claims and because the lack of diversity between Defendants 21 and Plaintiffs precludes the exercise of diversity jurisdiction, the Court lacks subject matter 22 jurisdiction over Plaintiffs’ complaint. 23 WITHOUT PREJUDICE to refiling in state court. 24 25 Accordingly, the complaint is DISMISSED It is SO ORDERED. Dated: April 10, 2018 26 27 28 2 18-CV-579 CAB KSC

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