Julian v. McDonald Keohane Funeral Home Inc

Filing 4

Judge Richard G. Stearns: ORDER entered. MEMORANDUM AND ORDER ON COMPLAINT FOR EMERGENCY PROTECTIVE ORDER. This action is dismissed pursuant to Rule 12(h)(3) for lack of subject matter jurisdiction. In view of the dismissal of this action for lack of subject jurisdiction, no action will be taken on plaintiffs Application to Proceed in District Court without Prepaying Fees or Costs. The Clerk shall enter a separate order of dismissal.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 18-10113-RGS
PAMELA JULIAN
v.
MCDONALD KEOHANE FUNERAL HOME INC.
MEMORANDUM AND ORDER ON COMPLAINT
FOR EMERGENCY PROTECTIVE ORDER
January 23, 2018
STEARNS, D.J.
INTRODUCTION
For the reasons set forth below, the court dismisses this action for lack
of subject matter jurisdiction pursuant to Rule 12(h)(3).
BACKGROUND
Plaintiff Pamela Julian, a resident of Brookline, Massachusetts,
initiated this action, through counsel, by filing a verified ex parte emergency
complaint for protective order. See Complaint (Compl.), Dkt #1. With the
Complaint, plaintiff filed an Application to Proceed in District Court without
Prepaying Fees or Costs. See Dkt #2.
The Complaint names as defendant a funeral home in Hingham,
Massachusetts. Compl. ¶ 2. Julian alleges that her mother Alice Julian died
on January 9, 2018. Id. ¶ 8. Julian seeks to have this court issue an order to

enjoin the defendant from releasing her mother’s body until the performance
of forensic medical testing. Id. ¶ 4 (prayer for relief). The Complaint
references state court litigation that terminated upon Alice Julian’s death.
Id. ¶¶ 7, 8. Plaintiff contends that this court has jurisdiction over her claim
for injunctive relief pursuant to the general federal question statute, 28
U.S.C. § 1331, and the Declaratory Judgment Act, 28 U.S.C. § 2201. Id. ¶¶ 3,
4.
STANDARD OF REVIEW
“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see
Spooner v. EEN, Inc., 644 F.3d 62, 67 (1st Cir. 2011) (“A court is duty-bound
to notice, and act upon, defects in its subject matter jurisdiction sua
sponte.”).
DISCUSSION
After reviewing the Complaint, it is clear that this court does not have
subject matter jurisdiction. First, there is no allegation that the parties are
diverse for purposes of diversity jurisdiction under 28 U.S.C. § 1332. Even if
the allegations of the Complaint are accepted as true, no federal question is
raised pursuant to 28 U.S.C. § 1331. Injunctive relief is a remedy and not a
cause of action. Moreover, the Declaratory Judgment Act itself does not
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independently confer jurisdiction on federal courts. Skelly Oil Co. v. Phillips
Petroleum Co., 339 U.S. 667, 671 (1950). Thus, the invocation of Section
2201 is not enough to confer jurisdiction on federal courts; some
independent source is required. See id. at 672; see also Colonial Penn Grp.,
Inc. v. Colonial Deposit Co., 834 F.2d 229, 232 (1st Cir. 1987) (“Federal
jurisdiction does not lie simply because relief is requested under the federal
Declaratory Judgment Act.”).
The court notes that the case caption of the Complaint misidentifies
this court as the “First Circuit District Court of Massachusetts.” To the extent
Julian seeks review of a ruling of the Supreme Judicial Court, this court is
barred from exercising jurisdiction over such a challenge by the RookerFeldman doctrine.1 See also Miller v. Nichols, 586 F. 3d 53, 59 (1st Cir.
2009); 28 U.S.C. § 1257. Because the Rooker-Feldman doctrine implicates
this court’s subject matter jurisdiction, the court may consider the issue sua
sponte. DuLaurence v. Telegen, 94 F. Supp. 3d 73, 78 (D. Mass. 2015).
Finally, prior notice to the plaintiff is ordinarily required to permit the
plaintiff to correct her error, but no notice is necessary “[i]f it is crystal clear
that the plaintiff cannot prevail and that amending the complaint would be

The Rooker-Feldman doctrine takes its name from two Supreme
Court cases: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and D.C. Ct. of
Appeals v. Feldman, 460 U.S. 462 (1983).
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futile.” González-González v. United States, 257 F.3d 31, 37 (1st Cir. 2001).
Such is the case here.
ORDER
ACCORDINGLY, for the reasons stated above, it is hereby ORDERED
that:
(1)

This action is dismissed pursuant to Rule 12(h)(3) for lack of

subject matter jurisdiction;
(2)

In view of the dismissal of this action for lack of subject

jurisdiction, no action will be taken on plaintiff’s Application to Proceed in
District Court without Prepaying Fees or Costs; and
(3)

The Clerk shall enter a separate order of dismissal.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE 

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