Goode v. Evans Metal Fabricators et al
Filing
25
Opinion and Order - The Complaint 2 is DISMISSED. Plaintiff has 14 days to replead, under penalty of perjury, that he is a citizen of Virginia, if he is, and Plaintiff is further directed to state the facts that support such an allegation. Signed on 6/11/2013 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
CHARLES M. GOODE
Case No.: 3:12-cv-1094-SI
Plaintiff,
OPINION AND ORDER
v.
EVANS METAL FABRICATORS, et al.,
Defendants.
Michael H. Simon, District Judge.
Plaintiff filed a pro se Complaint in forma pauperis on June 19, 2012. Dkt. 2. This Court
appointed pro bono counsel for the limited purpose of reviewing and investigating Plaintiff’s
claims and providing Plaintiff with a written report regarding his claims. Dkt. 10. Courtappointed counsel conducted the review and investigation and provided Plaintiff with the
requested report. Dkt. 12. The pro bono representation was then terminated and Plaintiff was
ordered to proceed pro se. Dkt. 15. On May 7, 2013, the Court ordered Plaintiff to show cause
why this case should not be dismissed for lack of subject-matter jurisdiction. Dkt. 20. Plaintiff
timely responded. Dkt. 22. For the reasons discussed below, the Court dismisses this case for
PAGE 1 – OPINION AND ORDER
lack of subject-matter jurisdiction, with leave to replead alleging diversity jurisdiction, if
appropriate.
STANDARDS
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). Unlike state courts, which are courts of general jurisdiction,
federal courts may only exercise jurisdiction in certain kinds of cases as authorized by the United
States Constitution and Congress. See id; United States v. Jacobo Castillo, 496 F.3d 947, 951
(9th Cir. 2007) (en banc). “It is to be presumed that a [complaint] lies outside this limited
jurisdiction, . . . . and the burden of establishing the contrary rests upon the party asserting
jurisdiction,” which in this case is Plaintiff. Kokkonen, 511 U.S. at 377 (internal citation
omitted). The Court has “an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp.,
546 U.S. 500, 514 (2006). The court may therefore raise the question of subject-matter
jurisdiction on its own initiative at any stage in the litigation. Arbaugh, 546 U.S. at 506. “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) (emphasis added).
A court must liberally construe the filings of a pro se plaintiff and afford the
plaintiff the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under
Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” This standard “does
not require ‘detailed factual allegations,’” but does demand “more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels
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and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.
(quoting Twombly, 550 U.S. at 555).
“Defective allegations of jurisdiction may be amended, upon terms, in the trial or
appellate courts.” 28 U.S.C. § 1653. It is improper to dismiss an action based on a defective
allegation of jurisdiction without leave to amend “unless it is clear, upon de novo review, that the
complaint could not be saved by amendment.” Snell v. Cleveland, Inc., 316 F.3d 822, 828 n.6
(9th Cir. 2002) (citing Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001)).
BACKGROUND
In his pro se Complaint, Plaintiff alleges that he was injured on the job on October 13,
2008, while employed by Defendant Evans Metal Fabricators (“Evans Metal”), that he was
slandered by Defendants Evans Metal and Tim Middlemiss, that Evans Metal tampered with
witnesses relating to Plaintiff’s worker’s compensation claims, that Mr. Middlemiss perjured
himself relating to that claim, and that Defendant Ja’sonn Butler gave false testimony under oath.
Compl. at 3-4. Dkt. 2. Plaintiff also alleges that a settlement offer was made to him but that it
had “stipulations” that apparently were not acceptable to Plaintiff. Id. at 3. There are limited
factual assertions in the Complaint, and the claims are not specifically identified. Thus, it is
difficult to ascertain the specific causes of action alleged by Plaintiff. The Complaint appears to
plead common law tort causes of action for negligence, defamation, harassment, fraud or
negligent misrepresentation, and possibly violations of Oregon’s workers’ compensation laws.
In his response to the Order to Show Cause, Plaintiff argues that his case should not be
dismissed for lack of subject-matter jurisdiction because there is diversity of citizenship and he
alleges violations of “U.S. Code Title 42 Chapter 21” and violations of his Sixth Amendment
rights. Plf’s Resp. at 3.
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DISCUSSION
The two primary categories of civil cases over which the federal courts have jurisdiction
are those based on federal law (federal question jurisdiction) and those involving citizens of
different states where more than $75,000 is at issue (diversity jurisdiction). In Section II.A of his
Complaint, Plaintiff checked the box for “Federal Question” as the basis for federal court
jurisdiction. Plaintiff, however, failed to identify the specific federal Constitutional, statutory, or
treaty right at issue in Section II.B of his Complaint. In his response to the Order to Show Cause,
Plaintiff alleges both federal question jurisdiction and diversity jurisdiction.
A. Federal Question Jurisdiction
Plaintiff’s Complaint fails to allege claims or facts that support federal question
jurisdiction. In his response to the Order to Show Cause, Plaintiff asserts that his Sixth
Amendment right to a fair trial was violated, apparently based on the allegation that corporate
witnesses from Evans Metal gave “perjured” testimony and induced witnesses favorable to
Plaintiff not to testify.1 Plaintiff also asserts that his Sixth Amendment right to compulsory
process for obtaining witnesses in his favor was violated because he was not able to obtain
witnesses in his favor.
Although these alleged constitutional violations were not pled in Plaintiff’s Complaint,
the Court will consider them in its jurisdictional analysis because the Court construes pro se
filings liberally. Hebbe, 627 F.3d at 342. Plaintiff’s argument that this Court has federal subjectmatter jurisdiction based on alleged constitutional violations nevertheless fails because the rights
guaranteed under the Sixth Amendment apply only to criminal cases and do not apply to civil
1
It is unclear whether the allegedly perjured testimony and suppressed testimony
occurred at an Oregon state worker’s compensation hearing or through some other testimony
given under oath.
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cases. See U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the
right . . . to have compulsory process for obtaining witnesses in his favor.”) (emphasis added);
See also Leatherwood v. Anna's Linens Co., 384 Fed. Appx. 853, 2010 WL 2490753, at *2 (11th
Cir. June 17, 2010) (finding that the Sixth Amendment right to confront witnesses does not apply
in civil cases); Birt v. Montgomery, 709 F.2d 690, 704 n. 2 (11th Cir.1983) (Henderson, J.,
dissenting) (noting that the Sixth Amendment right “to secure witnesses’ testimony” does not
apply to habeas corpus proceedings because such proceedings are civil in nature (citing Pulliam
v. Balkcom, 263 S.E.2d 123, 125 (Ga. 1980), cert. denied, 447 U.S. 927 (1980))); Tannahill v.
United States, 25 Cl. Ct. 149, 152 n.6 (1992) (noting that the Sixth Amendment does not apply to
civil cases).
Plaintiff also argues that this Court has federal subject-matter jurisdiction based on an
alleged “[v]iolation of civil rights by the unequal treatment because of race and disability” under
“U. S. Code Title 42 Chapter 21.” Plf’s Resp. at 3. Plaintiff, however, fails to identify which
statute under Title 42, Chapter 21 he alleges has been violated. Plaintiff also fails to allege any
facts in his response to the Order to Show Cause or his Complaint sufficient to identify the
alleged “unequal treatment” and how it was based on his race or disability, nor does he allege
any facts from which the Court can infer any violation of a federal statute.
Although the Court construes pro se filings liberally, here Plaintiff offers no more than a
conclusory statement that his allegations include an unidentified violation of some statute under
United States Code Title 42, Chapter 21. Further, his allegation of such a violation is
contradicted by the facts he alleges in his Complaint. Thus, Plaintiff fails properly to articulate a
claim on which he can base federal subject-matter jurisdiction. The Court also finds that that the
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Complaint could not be saved by amendment relating to the allegations of federal question
jurisdiction.
B. Diversity Jurisdiction
Plaintiff also argues in his response to the Order to Show Cause that there is federal
subject-matter jurisdiction based on diversity. Plaintiff asserts that he was born and raised in
Virginia, “has family ties and resident [sic] and much neglected obligations there,” and that his
ability to return was prohibited by his injury. Plf’s Resp. at 3-4. Plaintiff did not properly allege
diversity jurisdiction in his Complaint.
As relevant here, diversity jurisdiction requires that the plaintiff and defendant be
“citizens of different states.” 28 U.S.C. § 1332(a)(1). Plaintiff does not clearly allege that he is a
citizen of Virginia, nor does he allege facts from which such citizenship could be inferred, such
as that Plaintiff is registered to vote in Virginia, has a residence in Virginia, files a state tax
return in Virginia, or has a Virginia driver’s license. Further, Plaintiff’s allegations in his
Complaint and assertions in his response to the Order to Show Cause appear to show that
Plaintiff has been living in Oregon for at least five years and had employment in Oregon.
Plaintiff’s allegations are insufficient to show that he is a citizen of Virginia and that there is
complete diversity of citizenship among the parties. Thus, Plaintiff fails to properly allege
diversity jurisdiction.
Plaintiff argues in his response to the Order to Show Cause that diversity jurisdiction
exists in this case. As noted above, Plaintiff fails to properly allege that he is a citizen of
Virginia. It is not clear, however, whether Plaintiff is a citizen of Virginia or a citizen of Oregon.
Because a court must construe pro se filings liberally and because amendments should be
allowed for jurisdictional defects unless it is clear that no amendment could save the complaint,
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Plaintiff is allowed 14 days from the date of this Opinion and Order to replead his Complaint and
allege, under penalty of perjury, that he is a citizen of Virginia, if he is a citizen of Virginia.
The Court notes that it is the burden of Plaintiff to show diversity of citizenship. Kanter
v. Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 2001). The Court further notes that
Plaintiff’s state citizenship is determined by his state of domicile, which is his “permanent home,
where [he] resides with the intention to remain or to which [he] intends to return.” Id. at 857.
Factors considered in determining domicile include
current residence, voting registration and voting practices, location
of personal and real property, location of brokerage and bank
accounts, location of spouse and family, membership in unions and
other organizations, place of employment or business, driver's
license and automobile registration, and payment of taxes. . . .
[D]omicile is evaluated in terms of objective facts, and . . .
statements of intent are entitled to little weight when in conflict
with facts.
Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986) (internal quotations and citations omitted). For
Plaintiff to sufficiently plead diversity jurisdiction, he must allege, in good faith and under
penalty of perjury, that he is a citizen of Virginia, and the Court further directs that Plaintiff state
the facts that support that allegation.
CONCLUSION
The Complaint (Dkt. 2) is DISMISSED. Plaintiff has 14 days to replead, under penalty of
perjury, that he is a citizen of Virginia, if he is, and Plaintiff is further directed to state the facts
that support such an allegation.
IT IS SO ORDERED.
DATED this 11th day of June 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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