Bernardo et al v. Watterworth et al

Filing 3

FINDINGS AND RECOMMENDATIONS re 1 Complaint filed by Mark Kucera. IT IS RECOMMENDED that the Court DISMISS this action, without prejudice, for lack of subject matter jurisdiction. Signed by Magistrate Judge Carolyn S Ostby on 5/31/2016. (Hard copy mailed to M. Kucera.) (JDR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
PAUL BERNARDO and
MARK KUCERA,

CV-16-59-BLG-SPW-CSO

FINDINGS AND
RECOMMENDATION OF
U.S. MAGISTRATE JUDGE

Plaintiffs,
vs.
PAUL WATTERWORTH and
JERRY JORDAN,
Defendants.

On May 18, 2016, a “Complaint for Injuctivr [sic], Declaratory and
Other Relief” (“Complaint”), purporting to bear the signature of
Plaintiff Mark Kucera, was filed with the Court. Cmplt. (ECF No. 1) at
7. The Complaint seeks to invoke this Court’s diversity jurisdiction
under 28 U.S.C. § 1332. Id. at 1. As explained below, however,
diversity jurisdiction is not established. The Court, therefore, lacks the
power to adjudicate this action.
Diversity of citizenship jurisdiction, if it exists, must be grounded
in 28 U.S.C. § 1332. That statute provides in pertinent part:
(a)

The district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is
between-1-

(1)

citizens of different States[.]

28 U.S.C. § 1332(a)(1).
It is fundamental that federal jurisdiction cannot be presumed.
The diversity statute requires complete diversity of citizenship between
all plaintiffs and all defendants. City of Indianapolis v. Chase Nat.
Bank of New York City, 314 U.S. 63, 69 (1941); Dolch v. United
California Bank, 702 F.2d 178, 181 (9th Cir. 1983) (citations omitted).
It is to be strictly construed. Indianapolis, 314 U.S. at 69. Plaintiff, as
the party asserting jurisdiction, has the burden of proving such
jurisdiction exists. Lew v. Moss, 797 F.2d 747, 751-52 (9th Cir. 1986).
Here, it is clear on the face of the Complaint that diversity of
citizenship is not satisfied. The Complaint alleges that Mark Kucera is
a citizen of Montana and that both Defendants Paul Watterworth and
Jerry Jordan also are citizens of Montana. ECF No. 1 at 1. Thus, the
parties are not diverse and this Court lacks subject matter jurisdiction.
Rule 12(h)(3) of the Federal Rules of Civil Procedure contemplates
that lack of subject matter jurisdiction can be raised at any time.
Further, the Court has the duty to raise jurisdictional issues even if the
parties do not. Sessions v. Chrysler Corp., 517 F.2d 759, 761 (9th Cir.
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1975). Based on the foregoing,
IT IS RECOMMENDED that the Court DISMISS this action,
without prejudice, for lack of subject matter jurisdiction.1
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendations of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendations must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after entry hereof,
or objection is waived.
DATED this 31st day of May, 2016.
/s/ Carolyn S. Ostby
United States Magistrate Judge

1

The Court also notes that Mark Kucera, who apparently purports
to represent both Plaintiffs, may not represent Paul Bernardo in this
Court. It is well-settled in the Ninth Circuit that a non-lawyer has no
authority to appear as an attorney for others than himself. Johns v.
County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (citing C.E. Pope
Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)). Also,
this Court’s Local Rules of Procedure provide that “[o]nly an attorney
authorized to appear [in this Court] may appear on behalf of a party.”
Local Rule 83.1(a)(2), Local Rules of Procedure, United States District
Court for the District of Montana (“Local Rules”). Here, Mark Kucera
is not licensed to practice law in this Court and therefore is not
authorized to appear on behalf of another party.
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