Rojas et al v. Ygrene Energy Fund Inc. et al
Dismissal Without Prejudice for Lack of Subject Matter Jurisdiction. Signed by Judge Cathy Ann Bencivengo on 4/10/2018.(jjg)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MARTHA ROJAS and ROGER ROJAS,
Case No.: 18-CV-579 CAB KSC
DISMISSAL WITHOUT PREJUDICE
FOR LACK OF SUBJECT MATTER
YGRENE ENERGY FUND, INC. et al.,
This matter is before the Court on an order to show cause as to subject matter
jurisdiction. The complaint alleges federal question jurisdiction based solely on a claim
for violation of Title 16, section 429.1, of the Code of Federal Regulations, and
supplemental jurisdiction over the eight state law claims. However, “[t]o acquire federal
jurisdiction, a plaintiff must assert a colorable right to a remedy under a particular federal
statute.” Carlson v. Coca-Cola Co., 483 F.2d 279, 280 (9th Cir. 1973). Title 16, section
429.1, of the Code of Federal Regulations was promulgated pursuant to the Federal Trade
Commission Act (the “FTCA”). See Part 429--Cooling-Off Period for Door-to-Door Sales:
Promulgation of Trade Regulations Rule and Statement of Its Basis and Purpose, 37 Fed.
Reg. 22934-35 (Oct. 26, 1972).
Carlson, 483 F.2d at 280; O’Donnell v. Bank of Am., Nat’l Ass’n, 504 Fed. Appx. 566, 568
(9th Cir. 2013) (“[T]he Federal Trade Commission Act . . . doesn’t create a private right of
action.”); 5 McCarthy on Trademarks and Unfair Competition § 27:119 (5th ed.) (“While
it has often been argued that a private right to sue for a violation of the FTC Act’s
prohibitions should be implied, the courts have consistently held that there is no such
The FTCA does not create a private right of action.
18-CV-579 CAB KSC
private right to sue. That is, only the FTC, as a federal agency, has the power to issue cease
and desist orders, obtain civil penalties, or file suit for violation of the FTC Act.”). Thus,
“it follows that there is no private right of action to enforce the FTC’s promulgated 16
C.F.R. § 429.1.” Howard v. Burleson Servs., Inc., No. 616CV300ORL18TBS, 2017 WL
1862212, at *2 (M.D. Fla. May 8, 2017). If there is no private right of action to enforce 16
C.F.R. § 429.1, Plaintiffs have not asserted a colorable right to a remedy under a federal
statute, meaning the Court lacks subject matter jurisdiction over this lawsuit.
In their response to the Court’s order to show cause, Plaintiffs fail to cite to any
federal court cases holding that consumers have a private right of action under 16 C.F.R. §
429.1 or the FTCA in general. That regulations enacted pursuant to the FTCA provide
benefits or rights to consumers does not necessarily mean that consumers have a right to
sue to enforce such regulations, regardless of whether the relief sought is equitable or
monetary. Only the FTC has the power to file suit for violation of those regulations. See
5 McCarthy on Trademarks and Unfair Competition § 27:119 (5th ed.).
In sum, there is no private right of action to sue for violation of the FTC Act. This
prohibition includes regulations promulgated pursuant to the FTC Act. Plaintiffs cite to no
authority to the contrary. Plaintiffs first claim for violation of 16 C.F.R. § 429.1, therefore,
does not assert a colorable right to a remedy obtainable by Plaintiffs via this lawsuit and
cannot serve as a basis for federal question subject matter jurisdiction. Because Plaintiffs
do not assert any other federal claims and because the lack of diversity between Defendants
and Plaintiffs precludes the exercise of diversity jurisdiction, the Court lacks subject matter
jurisdiction over Plaintiffs’ complaint.
WITHOUT PREJUDICE to refiling in state court.
Accordingly, the complaint is DISMISSED
It is SO ORDERED.
Dated: April 10, 2018
18-CV-579 CAB KSC
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?