1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LOUIS EISELIN, Case No.: 23-CV-1961 JLS (AHG)
12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS
14 USCIS SAN DIEGO, (ECF No. 5) 15 Defendant. 16 17 Presently before the Court is Defendant United States Citizenship and Immigration 18 Services’ (“Defendant” or “USCIS”) Motion to Dismiss Plaintiff’s Complaint (“Mot.,” 19 ECF No. 5). Plaintiff Louis Eiselin, who is proceeding pro se, did not file a response.1 For 20 the reasons below, the Court GRANTS Defendant’s Motion. 21 / / / 22 23 24 1 A district court may, pursuant to a local rule, grant a motion to dismiss for failure to respond. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Here, a local rule allows the Court to grant the 25 Motion as unopposed. See CivLR 7.1(f)(3)(c). But before dismissing an action on those grounds, the Court must consider, among other factors, the “availability of less drastic sanctions.” Ghazali, 46 F.3d 26 at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). Such “less drastic sanctions” include the “adjudication of the motion without the benefit of plaintiffs’ arguments in opposition.” 27 Wystrach v. Ciachurski, 267 F. App’x 606, 608 (9th Cir. 2008). Upon review of the record, the Court 28 exercises its discretion to adopt the lesser sanction and adjudicate Defendant’s Motion in lieu of dismissing 1 BACKGROUND 2 Plaintiff initiated this action on August 8, 2023, by filing a “Claim and Order” 3 (“Compl.,” ECF No. 1-2 at 20–24)2 in the Small Claims Division of the San Diego Superior 4 Court. ECF No. 1-2 at 20. The Complaint alleges that Plaintiff made two payments to 5 USCIS to “receive [his] U.S. Citizenship document”: $65.00 on March 18, 1999, and 6 $555.00 on September 3, 2022. Id. at 21–22. Plaintiff claims he is now in possession of a 7 “USCIS document” that makes the following statement: “If you are a veteran of the U.S. 8 armed forces,” there “is NO fee.” Id. at 21. The Complaint thus seeks to recover a total of 9 $620 in erroneously collected fees from USCIS. See id. 10 On October 25, 2023, Defendant removed Plaintiff’s case to this Court pursuant to 11 28 U.S.C. § 1442(a)(1), noting that Plaintiff’s claim constituted a civil action against an 12 agency of the United States. See generally Notice of Removal (“NOR”), ECF No. 1. After 13 Defendant filed an Ex Parte Application seeking clarification on filing deadlines, the Court 14 ordered Defendant to respond to the Complaint on or before December 26. See ECF 15 Nos. 3, 4. The instant Motion followed on December 20. The Court issued a briefing 16 schedule the next day, which required Plaintiff to respond to the Motion by 17 February 8, 2024. See ECF No. 6. After Plaintiff failed to timely file opposition papers, 18 the Court took this matter under submission without oral argument pursuant to Civil Local 19 Rule 7.1(d)(1). See ECF No. 8. 20 LEGAL STANDARD 21 Federal courts are courts of limited jurisdiction and thus have an obligation to 22 dismiss claims for which they lack subject-matter jurisdiction. Demarest v. United States, 23 718 F.2d 964, 965–66 (9th Cir. 1983). The burden of establishing subject-matter 24 jurisdiction is on the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of 25 Am., 511 U.S. 375, 377 (1994). 26 27 28 2 Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each 1 Under Federal Rule of Civil Procedure 12(b)(1), a party may raise by motion the 2 defense that the complaint lacks subject-matter jurisdiction via a facial or factual attack. 3 See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, such as the one 4 here, “the challenger asserts that the allegations contained in a complaint are insufficient 5 on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 6 373 F.3d 1035, 1039 (9th Cir. 2004). A court resolves a facial attack as it would a Rule 7 12(b)(6) motion: “Accepting the plaintiff’s allegations as true and drawing all reasonable 8 inferences in the plaintiff’s favor, the court determines whether the allegations are 9 sufficient . . . to invoke the court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 10 (9th Cir. 2014). 11 When a party files a 12(b)(1) motion, “there is a presumption of a lack of jurisdiction 12 until the plaintiff affirmatively proves otherwise.” Orient v. Linus Pauling Inst. of Sci. & 13 Med., 936 F. Supp. 704, 706 (D. Ariz. 1996). At the same time, courts have a duty to 14 liberally construe a pro se litigant’s pleadings. See Karim-Panahi v. Los Angeles Police 15 Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). 16 ANALYSIS 17 Defendant argues the Court lacks subject matter jurisdiction over this action due to 18 the interplay of two legal concepts: sovereign immunity and the doctrine of derivative 19 jurisdiction. For the reasons below, the Court agrees. 20 I. Legal Framework 21 A. Sovereign Immunity 22 When a party sues the federal government, the law on which such action is based 23 must generally contain an explicit waiver of sovereign immunity for subject matter 24 jurisdiction to exist. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is 25 axiomatic that the United States may not be sued without its consent and that the existence 26 of consent is a prerequisite for jurisdiction.”). “In sovereign immunity analysis, any 27 lawsuit against an agency of the United States . . . is considered an action against the 28 United States.” Balser v. Dep’t of Just., 327 F.3d 903, 907 (9th Cir. 2003). 1 A waiver of sovereign immunity must be “‘unequivocally expressed’ in the text of 2 a relevant statute.” Daniel v. Nat’l Park Serv., 891 F.3d 762, 768 (9th Cir. 2018) (quoting 3 United States v. Bormes, 568 U.S. 6, 9–10 (2012)). A party suing the federal government 4 bears the burden of identifying such an express statutory waiver. See Hajro v. USCIS, 5 811 F.3d 1086, 1101 (9th Cir. 2016). “[A]ny ambiguities in the statutory language are to 6 be construed in favor of immunity.” Daniel, 891 F.3d at 769 (emphasis omitted) (quoting 7 FAA v. Cooper, 566 U.S. 284, 290 (2012)). 8 B. Derivative Jurisdiction Doctrine 9 Under the doctrine of derivative jurisdiction, where cases are “removed from state 10 court pursuant to [28 U.S.C.] § 1442,”3 the Court’s “jurisdiction is derivative of the state 11 court’s jurisdiction.” In re Elko Cnty. Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LOUIS EISELIN, Case No.: 23-CV-1961 JLS (AHG)
12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS
14 USCIS SAN DIEGO, (ECF No. 5) 15 Defendant. 16 17 Presently before the Court is Defendant United States Citizenship and Immigration 18 Services’ (“Defendant” or “USCIS”) Motion to Dismiss Plaintiff’s Complaint (“Mot.,” 19 ECF No. 5). Plaintiff Louis Eiselin, who is proceeding pro se, did not file a response.1 For 20 the reasons below, the Court GRANTS Defendant’s Motion. 21 / / / 22 23 24 1 A district court may, pursuant to a local rule, grant a motion to dismiss for failure to respond. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Here, a local rule allows the Court to grant the 25 Motion as unopposed. See CivLR 7.1(f)(3)(c). But before dismissing an action on those grounds, the Court must consider, among other factors, the “availability of less drastic sanctions.” Ghazali, 46 F.3d 26 at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). Such “less drastic sanctions” include the “adjudication of the motion without the benefit of plaintiffs’ arguments in opposition.” 27 Wystrach v. Ciachurski, 267 F. App’x 606, 608 (9th Cir. 2008). Upon review of the record, the Court 28 exercises its discretion to adopt the lesser sanction and adjudicate Defendant’s Motion in lieu of dismissing 1 BACKGROUND 2 Plaintiff initiated this action on August 8, 2023, by filing a “Claim and Order” 3 (“Compl.,” ECF No. 1-2 at 20–24)2 in the Small Claims Division of the San Diego Superior 4 Court. ECF No. 1-2 at 20. The Complaint alleges that Plaintiff made two payments to 5 USCIS to “receive [his] U.S. Citizenship document”: $65.00 on March 18, 1999, and 6 $555.00 on September 3, 2022. Id. at 21–22. Plaintiff claims he is now in possession of a 7 “USCIS document” that makes the following statement: “If you are a veteran of the U.S. 8 armed forces,” there “is NO fee.” Id. at 21. The Complaint thus seeks to recover a total of 9 $620 in erroneously collected fees from USCIS. See id. 10 On October 25, 2023, Defendant removed Plaintiff’s case to this Court pursuant to 11 28 U.S.C. § 1442(a)(1), noting that Plaintiff’s claim constituted a civil action against an 12 agency of the United States. See generally Notice of Removal (“NOR”), ECF No. 1. After 13 Defendant filed an Ex Parte Application seeking clarification on filing deadlines, the Court 14 ordered Defendant to respond to the Complaint on or before December 26. See ECF 15 Nos. 3, 4. The instant Motion followed on December 20. The Court issued a briefing 16 schedule the next day, which required Plaintiff to respond to the Motion by 17 February 8, 2024. See ECF No. 6. After Plaintiff failed to timely file opposition papers, 18 the Court took this matter under submission without oral argument pursuant to Civil Local 19 Rule 7.1(d)(1). See ECF No. 8. 20 LEGAL STANDARD 21 Federal courts are courts of limited jurisdiction and thus have an obligation to 22 dismiss claims for which they lack subject-matter jurisdiction. Demarest v. United States, 23 718 F.2d 964, 965–66 (9th Cir. 1983). The burden of establishing subject-matter 24 jurisdiction is on the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of 25 Am., 511 U.S. 375, 377 (1994). 26 27 28 2 Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each 1 Under Federal Rule of Civil Procedure 12(b)(1), a party may raise by motion the 2 defense that the complaint lacks subject-matter jurisdiction via a facial or factual attack. 3 See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, such as the one 4 here, “the challenger asserts that the allegations contained in a complaint are insufficient 5 on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 6 373 F.3d 1035, 1039 (9th Cir. 2004). A court resolves a facial attack as it would a Rule 7 12(b)(6) motion: “Accepting the plaintiff’s allegations as true and drawing all reasonable 8 inferences in the plaintiff’s favor, the court determines whether the allegations are 9 sufficient . . . to invoke the court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 10 (9th Cir. 2014). 11 When a party files a 12(b)(1) motion, “there is a presumption of a lack of jurisdiction 12 until the plaintiff affirmatively proves otherwise.” Orient v. Linus Pauling Inst. of Sci. & 13 Med., 936 F. Supp. 704, 706 (D. Ariz. 1996). At the same time, courts have a duty to 14 liberally construe a pro se litigant’s pleadings. See Karim-Panahi v. Los Angeles Police 15 Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). 16 ANALYSIS 17 Defendant argues the Court lacks subject matter jurisdiction over this action due to 18 the interplay of two legal concepts: sovereign immunity and the doctrine of derivative 19 jurisdiction. For the reasons below, the Court agrees. 20 I. Legal Framework 21 A. Sovereign Immunity 22 When a party sues the federal government, the law on which such action is based 23 must generally contain an explicit waiver of sovereign immunity for subject matter 24 jurisdiction to exist. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is 25 axiomatic that the United States may not be sued without its consent and that the existence 26 of consent is a prerequisite for jurisdiction.”). “In sovereign immunity analysis, any 27 lawsuit against an agency of the United States . . . is considered an action against the 28 United States.” Balser v. Dep’t of Just., 327 F.3d 903, 907 (9th Cir. 2003). 1 A waiver of sovereign immunity must be “‘unequivocally expressed’ in the text of 2 a relevant statute.” Daniel v. Nat’l Park Serv., 891 F.3d 762, 768 (9th Cir. 2018) (quoting 3 United States v. Bormes, 568 U.S. 6, 9–10 (2012)). A party suing the federal government 4 bears the burden of identifying such an express statutory waiver. See Hajro v. USCIS, 5 811 F.3d 1086, 1101 (9th Cir. 2016). “[A]ny ambiguities in the statutory language are to 6 be construed in favor of immunity.” Daniel, 891 F.3d at 769 (emphasis omitted) (quoting 7 FAA v. Cooper, 566 U.S. 284, 290 (2012)). 8 B. Derivative Jurisdiction Doctrine 9 Under the doctrine of derivative jurisdiction, where cases are “removed from state 10 court pursuant to [28 U.S.C.] § 1442,”3 the Court’s “jurisdiction is derivative of the state 11 court’s jurisdiction.” In re Elko Cnty. Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997). In 12 other words, “if a state court lacks jurisdiction over a case, a federal court does not acquire 13 jurisdiction on removal.” Rodriguez v. United States, 788 F. App’x 535, 536 (9th Cir. 14 2019). Accordingly, if the state court lacked jurisdiction here, “the proper remedy is to 15 dismiss the case for lack of jurisdiction, not to remand the action to state court.” Kim v. 16 Queens Med. Ctr., No. CV 19-00463 JMS-WRP, 2019 WL 11544491, at *4 (D. Haw. 17 Dec. 27, 2019), report and recommendation adopted, 2020 WL 1044004 (D. Haw. 18 Mar. 4, 2020). 19 II. Discussion 20 In this case, Defendant first argues that the United States “has not unequivocally 21 waived its sovereign immunity to allow a state court to order reimbursement of citizenship- 22 related fees.” Mot. at 5. So, Defendant continues, the state court lacked jurisdiction over 23 this action due to the principles of sovereign immunity. Defendant thus concludes that this 24 Court also lacks jurisdiction under the doctrine of derivative jurisdiction. See id. 25 Defendant is correct on all counts. 26
27 3 Congress abolished the derivative jurisdiction doctrine with respect to the general removal statute. See 28 28 U.S.C. § 1441(f). The doctrine, however, remains “alive and well and applies to 28 U.S.C. § 1442 1 The California Superior Court lacked jurisdiction over this action. As discussed 2 above, a plaintiff generally “bears the burden of showing an unequivocal waiver of 3 immunity.” Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987). That requirement 4 applies regardless of whether a party first raises their claims in federal or state court. See 5 Cox v. U.S. Dep’t of Agric., 800 F.3d 1031, 1032 (9th Cir. 2015) (“Because the record 6 contains no evidence that USDA waived its sovereign immunity to the Coxes’ petition, the 7 Nevada state court lacked jurisdiction over the action.”). And here, Plaintiff’s filings do 8 not identify a statutory waiver of sovereign immunity, nor discuss sovereign immunity at 9 all. See generally ECF No. 1-2. 10 As the state court was without jurisdiction over this case, this action must be 11 dismissed for lack of subject matter jurisdiction under the derivative jurisdiction doctrine. 12 See Cox, 800 F.3d at 1032 (holding district court “was bound to dismiss” case for lack of 13 jurisdiction “under the derivative jurisdiction doctrine,” “rather than remand [it] to state 14 court,” where the state court lacked jurisdiction); see also Kleidman v. Barash, No. CV 22- 15 610-DMG (JPRX), 2022 WL 1613019, at *2 (C.D. Cal. Apr. 21, 2022) (“Because the 16 Superior Court lacked jurisdiction, and this Court’s jurisdiction is derivative of the Superior 17 Court’s, this Court is compelled to dismiss this action for lack of jurisdiction.”), aff’d, 18 2023 WL 9470708 (9th Cir. July 3, 2023). 19 III. Form of Dismissal and Leave to Amend 20 Defendant asks the Court to dismiss this case with prejudice. But 12(b)(1) dismissals 21 are generally without prejudice, even when the dismissal is based on a failure to show a 22 waiver of sovereign immunity. See, e.g., Norvell v. Sec’y of the Treasury, 23 821 F. App’x 853, 854 (9th Cir. 2020) (affirming dismissal where plaintiff “failed to show 24 that [a statute]’s waiver of sovereign immunity applie[d] to his claims,” but “amend[ing] 25 the judgment to reflect that the dismissal” was “without prejudice” because “a dismissal 26 for lack of subject matter jurisdiction should be without prejudice”). Defendant does not 27 explain why this general rule should not apply here. 28 / / / 1 Defendant is on firmer footing, however, in seeking a dismissal without leave to 2 ||amend. True, a district court should typically “not dismiss a pro se complaint without leave 3 ||to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be 4 ||cured by amendment.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting 5 || Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988)). But under the derivative 6 jurisdiction doctrine, “a case filed in state court over which that court lacks jurisdiction is 7 |\|void from its very beginning.” Rubie’s LLC First Am. Title Co., 8 || No. 118CV01052DADSKO, 2018 WL 6419674, at *4 (B.D. Cal. Dec. 6, 2018). As a 9 || result, this Court “has no jurisdiction to acquire over the case via removal.” Jd. The Court 10 || thus cannot grant Plaintiff leave to amend. See Thibodeaux v. U.S. Postal Serv., No. 3:20- 11 CV-0651 W (LL), 2021 WL 242974, at *2 (S.D. Cal. Jan. 25, 2021) (denying leave to 12 ||amend where action was dismissed pursuant to the derivative jurisdiction doctrine); Acosta 13 ||v. Kijakazi, No. 22-55288, 2023 WL 3033499, at *1 (9th Cir. Apr. 21, 2023) (finding 14 “further amendment would be futile under the derivative jurisdiction doctrine,” as the 15 “‘district court lacked jurisdiction’). 16 CONCLUSION 17 In light of the foregoing, the Court DISMISSES this action WITHOUT 18 || PREJUDICE and WITHOUT LEAVE TO AMEND. As this concludes the litigation in 19 || this matter, the Clerk of the Court SHALL CLOSE the file. 20 IT IS SO ORDERED. 21 ||Dated: February 22, 2024 jae L. Lo memeaite- 22 on. Janis L. Sammartino United States District Judge 23 24 25 26 27 28