Duska v. Duska

Filing 5

REPORT AND RECOMMENDATIONS re 4 MOTION for Leave to File Late Answer and Counterclaim filed by Matthew D. Duska. Recommending the motion be denied and that the action be dismissed. Objections to R&R due by 12/24/2008. So Ordered by Magistrate Judge David L. Martin on 12/10/08. (Saucier, Martha)

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF RHODE ISLAND NANCY A. DUSKA, Plaintiff, v. MATTHEW D. DUSKA, Defendant. : : : : : : :

CA 08-303 ML

REPORT AND RECOMMENDATION David L. Martin, United States Magistrate Judge Before the Court is a Motion for Leave to File Late Answer (Document ("Doc.") #4) ("Motion for Leave" or "Motion"). Because

I find that subject matter jurisdiction does not exist in this matter, I recommend that the Motion be denied and that the action be dismissed. Facts1 It appears that Plaintiff Nancy A. Duska ("Plaintiff" or "Nancy") is married to Defendant Matthew D. Duska ("Defendant" or "Matthew"). Matthew is the defendant in a child support action See

which is pending in the Commonwealth of Massachusetts.

Carolyn Baskowski v. Matthew Duska, Docket #00D0145-DV1, The Trial Court, Probate and Family Court Department, Franklin Division (the "Massachusetts Action"). The plaintiff in the

Massachusetts Action has propounded interrogatories and a request

The facts are inferred or deduced from the filings which accompanied Plaintiff's complaint.

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for production of documents to Matthew.

The interrogatories and

request for production seek information not only about Matthew's assets but also about Nancy's assets. See Complaint (Doc. #1),

Exhibit ("Ex.") B (Interrogatories Propounded by the Plaintiff to Be Answered under Oath by the Defendant); id., Ex. C (Plaintiff's First Request for Production of Documents). Nancy filed this action on August 7, 2008. In her Complaint

she indicates that the basis for this Court's jurisdiction is "Federal Question" and that the nature of the lawsuit is "Constitutionality of State Statutes." The body of her complaint states: Federal Question: If property is acquired by a widow solely through her own efforts prior to or during a subsequent marriage, does she lose her constitutional right to control of her property and must she, be subject to her husband's exwife's attorney's will to, disclose information about this property or that of her children to hostile parties of another state without her consent or legal representation, in a case which federal agents of the Administration for Children and Families division of the Department of Health and Human Services have denied her access to any information regarding the suit on her own behalf, or that of her husband, because she is not a party to the case? Complaint. Law "[A] court has an obligation to inquire sua sponte[2] into Civil Cover Sheet at 1.

Sua sponte means "[w]ithout prompting or suggestion; on its own motion ...." Black's Law Dictionary 1464 (8t h ed. 2004).

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its subject matter jurisdiction, and to proceed no further if such jurisdiction is wanting." White v. Gittens, 121 F.3d 803,

806 (1st Cir. 1997)(quoting In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir. 1988)); see also McCulloch v. Vélez, 364 F.3d 1, 5 (1st Cir. 2004)("It is black-letter law that a federal court has an obligation to inquire sua sponte into its own subject matter jurisdiction."); In re Sheridan, 362 F.3d 96, 100 (1st Cir. 2004)(noting that "the courts are duty-bound to inquire, sua sponte, even absent objection by any party," into the question of subject matter jurisdiction); Hainey v. World Am Communications, Inc., 263 F.Supp.2d 338, 345 (D.R.I. 2003) ("[T]he Court is required to address its subject matter jurisdiction over an action, sua sponte if need be."); accord Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1261 (11th Cir. 2000)("[A] federal court must inquire sua sponte into the issue [of subject matter jurisdiction] whenever it appears that jurisdiction may be lacking."). "Federal district courts, like other Article III courts, are `courts of limited jurisdiction ... [that] possess only that power authorized by [the] Constitution and statute.'" Arar v.

Ashcroft, 532 F.3d 157, 170 (2nd Cir. 2008)(quoting Exxon Mobile Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 2616 (2005))(alterations in original). Article III courts

have federal question jurisdiction over cases or controversies

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arising under the Constitution, laws, or treaties of the United States. Equal Employment Opportunity Comm'n v. Chicago Club, 86 However, federal courts may Cardtoons, L.C. v. Major

F.3d 1423, 1428 (7th Cir. 1996).

only decide cases or controversies.

League Baseball Players Ass'n, 95 F.3d 959, 965 (10th Cir. 1996)(citing U.S. Const., art. III, § 2). In particular, "a case

or controversy must exist between the actual parties to a law suit for a federal court to have jurisdiction under Article III." McPherson v. Michigan High School Athletic Ass'n, 119 F.3d 453, 466 (6th Cir. 1997); S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exchange, Inc., 24 F.3d 427, 431 (2nd Cir. 1994)("[I]n order to achieve the status of a case or controversy, a dispute must exist between two parties having adverse legal interests."); see also New Hampshire Motor Transport Ass'n, 448 F.3d 66, 73 (1st Cir. 2006)("Article III considerations require that an actual case or controversy exist between the parties throughout the course of litigation."); Jenkins v. United States, 386 F.3d 415, 419 (2nd Cir. 2004) ("[T]o achieve the status of a case or controversy, a dispute must exist between two parties having adverse legal interests.") (alteration in original). Discussion It is clear that there is no case or controversy between Plaintiff and Defendant in this case. legal interests." They do not have "adverse

Jenkins v. United States, 386 F.3d at 419; see

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also S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exchange, Inc., 24 F.3d at 431 (same). Plaintiff's real complaint is that

the plaintiff in the Massachusetts Action, through her attorney, has propounded interrogatories and a request for production to Plaintiff's husband (Defendant) which seek information about assets owned by either Defendant or Plaintiff. However, because

there is no case or controversy between Plaintiff and Defendant, this Court lacks subject matter jurisdiction. See Tarrant

Regional Water District v. Sevenoaks, 545 F.3d 906, 910 (10th Cir. 2008)("The federal courts' jurisdiction extends only to actual cases or controversies. `[T]his means that, throughout

the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'") (quoting Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 983 (1998))(alteration in original)(internal citation omitted); see also Sandt Technology, Ltd. v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1356 n.4 (Fed. Cir. 2001)("Declaratory judgment jurisdiction pursuant to 28 U.S.C. § 2201 (1994) must be predicated on the existence of a case or controversy between the parties."). Accordingly, this action should be dismissed.3

In McCulloch v. Vélez, 364 F.3d 1 (1s t Cir. 2004), the Court of Appeals for the First Circuit also noted that before a court can dismiss an action under Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(1), "the party asserting the existence of subject matter jurisdiction must be given notice that the issue is in dispute and an

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Conclusion This Court lacks subject matter jurisdiction because there is no case or controversy between the parties. action should be dismissed, and I so recommend. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of the Court within ten (10)4 days of its receipt. See Federal Rule of Civil Procedure Failure to Accordingly, the

72(b); District of Rhode Island Local Rule Cv 72(d).

file specific objections in a timely manner constitutes waiver of the right to review by the District Court and the right to appeal the District Court's decision. See United States v. Valencia-

Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).

/s/ David L. Martin DAVID L. MARTIN United States Magistrate Judge December 10, 2008

adequate opportunity to ascertain and present relevant facts and arguments supporting his claim of jurisdiction," id. at 6. Accordingly, Plaintiff is given notice by this Report and Recommendation that subject matter jurisdiction appears to be lacking in this case. If Plaintiff chooses to file an objection to this Report and Recommendation, such objection should provide facts and arguments to support her claim that subject matter jurisdiction exists. The ten days do not include intermediate Saturdays, Sundays, or holidays. See Fed. R. Civ. P. 6(a)(2).
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