Opinion
No. CIV 01-0762 PK/DJS
November 28, 2001
ORDER
THIS MATTER comes on for consideration of pending motions. Upon consideration thereof,
(1) Plaintiffs, appearing pro se and in forma pauperis, have sued various non-resident Defendants in connection with the rental of a home in Mt. Shasta, California, that was contaminated with mold and fungus. In pertinent part, Plaintiffs allege that Defendants interfered with a recommendation by the Siskiyou County Health Department that the house be condemned or repaired. Doc. 1 at 10-11. Plaintiffs also state numerous other grievances against the various Defendants. The action is premised upon federal question and civil rights jurisdiction, 28 U.S.C. § 1331, 1343(a)(3) (4), based upon 42 U.S.C. § 1983. Id.
The magistrate judge allowed the action to proceed in forma pauperis on the financial affidavit and application of Plaintiff Naomi Olsen.
(2) After giving the complaint its mandated liberal construction, the court will dismiss the action in its entirety for failure to state a federal claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Defendants Engel and Triple A Machine Shop have moved to dismiss on this basis. Doc. 20, 21 at 3-6. In the alternative, Defendant Fire Insurance Exchange argues that the entire action should be dismissed for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), essentially because the federal claim is insubstantial and would not be sufficient to confer federal jurisdiction or supplemental jurisdiction. Doc. 15, 16 at 4-8. See Polk County v. Dodson, 454 U.S. 312, 315 (1981) (action under color of state law is a jurisdictional requisite of a § 1983 action); United Intl Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1220 (10th Cir. 2000) (discussing substantiality), affd 532 U.S. 588 (2001). Plaintiffs have not alleged any deprivation of federal rights under color of state law, see American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (§ 1983 requirements); thus any § 1983 claim against all Defendants should be dismissed with prejudice. Given the absence of a viable federal claim, the court will not grant the Plaintiffs leave to file an amended complaint as it would be futile. See Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001) (court may deny leave to amend where amended complaint would be subject to dismissal for any reason). The court declines to exercise supplemental jurisdiction over any state law claims. 28 U.S.C. § 1367(c); see Doc. 20, 21 at 6-8 (seeking dismissal of supplemental state law claims). The state law claims will be dismissed without prejudice.
Plaintiffs have not responded to Defendant Engel and Triple A Machine Shops motion in a separate pleading. See D. N.M. LR-Civ. 7.4(c) 7.6(a).
(3) Defendant Fire Insurance Exchanges motion to dismiss Farmers Insurance Group as a service mark (Doc. 15, 16 at 8-9) is granted.
(4) In the interests of completeness, the court would resolve various defenses raised by the moving Defendants as follows:
(a) Defendant Robert Babcocks motion to dismiss for lack of personal jurisdiction (Doc. 8, 9) and Defendants, Albert O. Engel and Triple A Machine Shop, motion to dismiss on the grounds of lack of personal jurisdiction (Doc. 20, 21 at 8-10) are well taken. See Fed.R.Civ.P. 12(b)(2); Peay v. Bellsouth Medical Assistance Plan, 205 F.3d 1206, 1209-1213 (10th Cir. 2000) (requirements for personal jurisdiction in federal question case); Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 455-56 (10th Cir. 1996) (requirements for personal jurisdiction in diversity case).
(b) Defendants Engel and Triple A Machine Shop have properly raised the personal defense of improper venue (Doc. 20, 21 at 10-12).
See Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996). Plaintiffs claim venue based upon other than diversity jurisdiction. Doc. 1 at 2.
A review of the file including Plaintiffs responses to other motions makes is clear that proper venue in this case does not lie in New Mexico. The various Defendants in this case do not reside in the same state, they are primarily from California. See 28 U.S.C. § 1391(b)(1). A federal judicial district in California is obviously the judicial district in which a substantial part of the events or omissions giving rise to the claim occurred and no good reason has been advanced why the action should not have been brought there. See 28 U.S.C. § 1391(b)(2) (3). If requested, the court would decline to transfer the case. 28 U.S.C. § 1406(a).
Plaintiff Tom Olsen has filed two other lawsuits in this district. Chief Judge Parker dismissed without prejudice for lack of subject matter jurisdiction in Olsen v. Triple A Machine Shop, Inc., 01cv618 JP/DJS, Order of Dismissal Without Prejudice (D.N.M. Aug. 16, 2001), appeal pending No. 01-2275 (10th Cir.). In another action that is pending, Plaintiffs Naomi Olsen and Tom Olsen have sued attorney Babcock and the Administrative Law Judge handling his case. Olsen v. Mapes, 01cv563 MV/RLP (D.N.M. filed May 18, 2001).
(c) Defendant Fire Insurance Exchange may be deemed a resident of New Mexico, see Tuck v. USAA, 859 F.2d 842, 844 (10th Cir. 1988), thus, there is no diversity jurisdiction over the various state law claims asserted by Plaintiffs. The court would decline to dismiss Defendant Fire Insurance Exchange to create complete diversity, Doc. 15, 16 at 9, particularly in view of Plaintiffs response that he views Farmers Insurance Exchange as part of a group and desires to have all claims litigated in one place. Doc. 27 at 3-4.
(d) Defendants Engel and Triple A Machine Shop are correct that the Plaintiffs complaint fails to comply with Fed.R.Civ.P. 10(b), the thirteen page complaint lacks numbered paragraphs, and it also lacks short and plain statements and identification of the various claims against each particular defendant, Fed.R.Civ.P. 8(a).
Though pro-se, Plaintiffs must comply with the rules of procedure.
(5) Pro Se Plaintiffs Request to File Exhibits in Excess of Fifty (50) pages in Response to Defendants Allegations that Other Filings Have the Same Questions to be Adjudicated filed November 5, 2001 (Doc. 22) is denied.
(6) Pro Se Plaintiffs Request for Expedited Hearing and Expedited Entire Case due to Infirmity filed November 5, 2001 (Doc. 25) is denied.
(7) Plaintiffs Notice or Motion, Motion for Pre-Hearing; Issuing Protective Order; Injunctive Relief; T. R. O. filed November 9, 2001 (Doc. 31) is denied.
IT IS SO ORDERED.