Opinion
No. CV-08-0265-PHX-LOA.
February 22, 2008
ORDER
This matter arises on the Court's review of the file. On February 11, 2008, Plaintiff filed a pro se Complaint against Defendant Breuners Arizona. (docket # 1) Shortly thereafter, Plaintiff expressly consented in writing to magistrate judge jurisdiction pursuant to Title 28 U.S.C. § 636(c)(1). (docket # 5) For the reasons set forth below, the Court will dismiss the Complaint without prejudice and will provide the pro se Plaintiff a fair opportunity to file an Amended Complaint to comply with this Order.
According to the public records of the Arizona Corporation Commission and the Office of the Secretary of State, "Breuners Arizona" is a trademark for Tomajan Investments, Inc., likely an Arizona corporation with its principal place of business in Maricopa County, Arizona. If true, the caption should read "Tomajan Investments, Inc., an Arizona corporation d/b/a/ Breuners Arizona."
I. Dismissal of the Complaint.
"[A] federal court may dismiss sua sponte if jurisdiction is lacking." Fiedler v. Clark, 714 F.2d 77, 78 (9th Cir. 1983) (citing Mansfield, Coldwater Lake Mich. R.y. Co. v. Swan, 111 U.S. 379, 382 (1884)); Franklin v. Or. State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981) (same). "While a party is entitled to notice and an opportunity to respond when a court contemplates dismissing a claim on the merits, it is not so when the dismissal is for lack of subject matter jurisdiction." Scholastic Entm't, Inc. v. Fox Entm't Group, Inc., 336 F.3d 982, 985 (9th Cir. 2003) (citations omitted); Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.").
In this case, Plaintiff's Complaint does not contain a sufficient statement of the Court's subject matter jurisdiction. Fed.R.Civ.P. 8(a) ("A pleading . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends[.]"). "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute[.]" Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Pursuant to federal statutes, this Court has subject matter jurisdiction over a case only if the complaint alleges a federal cause of action or the amount in controversy exceeds $75,000 and the parties are citizens of different states. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."); 28 U.S.C. § 1332(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 . . . and is between — (1) citizens of different States[.]").
Diversity jurisdiction is based on citizenship, not residency. To be a citizen of a particular state, a natural person must both be a citizen of the United States and be domiciled within that state. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989); Kalinowski v. Davol, Inc., 2006 WL 2615894 * 2 (D. Ariz. 2006). "[A] corporation is a citizen of any state where it is incorporated and of the state of its principal place of business." Indus. Tectonics v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990); 28 U.S.C. § 1332(c). The burden of establishing jurisdiction is on the party claiming jurisdiction. Id. (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-183 (1936)).
Plaintiff's Complaint does not allege a federal cause of action and fails to state that the parties are citizens of different states. The Complaint, therefore, fails to properly invoke the Court's jurisdiction. 28 U.S.C. §§ 1331, 1332. Ordinarily, a case dismissed for lack of subject matter jurisdiction should be dismissed without prejudice so that a plaintiff may reassert his or her claims in a competent court. Black v. Payne, 591 F.2d 83, 86 (9th Cir.), cert. denied, 444 U.S. 867, 100 S.Ct. 139, 62 L.Ed.2d 90 (1979); Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988). Thus, the Court will dismiss the Complaint without prejudice for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); Scholastic Entm't, 336 F.3d at 989 (affirming sua sponte dismissal of claims governed by state law); Franklin, 662 F.2d at 1343 (affirming sua sponte dismissal of claims that "[did] not allege the deprivation of any constitutional right or state a federal cause of action"); Kokkonen, 511 U.S. at 377 (stating that the court presumes lack of jurisdiction until the plaintiff proves otherwise). The Court will also allow Plaintiff to file an Amended Complaint that properly invokes the Court's jurisdiction, if appropriate. Plaintiff shall have until and including Friday, March 7, 2008 to file an Amended Complaint.
Plaintiff is advised that if she is going to represent herself, she must become familiar with, and follow, the Federal Rules of Civil Procedure and the Rules of the United States District Court for the District of Arizona ("Local Rules"), which may be obtained in the Clerk of Court's office or online. Plaintiff must also understand the neutral role a judge has in litigation. The United States Supreme Court has made clear: federal "judges have no obligation to act as counsel or paralegal to pro se litigants" because requiring trial judges to explain the details of federal procedure or act as the pro se's counsel "would undermine district judges' [or magistrate judges'] role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 226-227 (2004). Plaintiff is also advised that if she fails to prosecute this action or comply with the rules, this Order or any Court order, the Court may dismiss the action with prejudice (meaning it may not be refiled) pursuant to Federal Rule of Civil Procedure 41(b). Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding that the district court did not abuse its discretion in dismissing a pro se plaintiff's complaint for failing to comply with a court order).
Accordingly,
IT IS ORDERED that Plaintiff's Complaint, docket #1, is dismissed without prejudice for lack of subject matter jurisdiction. Plaintiff has until and including Friday, March 7, 2008 to file an Amended Complaint.
IT IS FURTHER ORDERED that counsel and any party, if unrepresented, shall comply with the Rules of Practice for the United States District Court for the District of Arizona, as amended on December 1, 2007. The District's Rules of Practice may be found on the District Court's internet web page at www.azd.uscourts.gov/. All other rules may be found at www.uscourts.gov/rules/. The fact that a party is acting pro se does not discharge this party's duties to "abide by the rules of the court in which he litigates." Carter v. Commissioner of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986).