Lemke v. Barber

• Court: District Court, S.D. California
• Decided: March 25, 2020
• Docket: 3:20-cv-00345
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Richard G. Lemke, Case No.: 3:20-cv-00345-GPC-LL

12 Plaintiff,

13 v. ORDER SUA SPONTE DISMISSING FIRST AMENDED COMPLAINT 14 Laurie Barber, FOR LACK OF SUBJECT MATTER 15 Defendant. JURISDICTION [Dkt. No. 4] 16 17 18 19 On March 12, 2020, Richard G. Lemke (“Plaintiff”) filed the operative first 20 amended complaint (“FAC”) against Laurie Barber (“Defendant”) alleging fraud upon 21 the state court pursuant to Federal Rule of Civil Procedure (“Rule”) 60(d).1 (Dkt. No. 4.) 22 Essentially, Plaintiff is seeking relief from a state court judgment and is demanding 23 $5,000,000 in damages, alleging that Defendant, Plaintiff’s opposing counsel in the state 24 court proceeding, committed fraud on the state court when she allegedly “continued to 25 file documents in the California Superior Court County of San Diego Probate Division” 26

27 1 On February 24, 2020, Plaintiff filed the original complaint against Defendant alleging fraud upon the 28 1 when “she had knowledge that the will [at issue] had never been admitted” and that “her 2 clients . . . had no standing.” (Dkt. No. 4 at 31.2) 3 Discussion 4 The federal court is one of limited jurisdiction and the burden rests on the party 5 asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 6 (1994). It possesses only that power authorized by the Constitution or a statute. See 7 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). It is constitutionally 8 required to raise issues related to federal subject matter jurisdiction, and may do so sua 9 sponte. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–94 (1998); see Nevada v. 10 Bank of America Corp., 672 F.3d 661, 673 (9th Cir. 2012) (it is well established that “a 11 court may raise the question of subject matter jurisdiction, sua sponte, at any time during 12 the pendency of the action, even on appeal”). Accordingly, federal courts are under a 13 continuing duty to confirm their jurisdictional power and are “obliged to inquire sua 14 sponte whenever a doubt arises as to [its] existence . . . .” Mt. Healthy City Sch. Dist. Bd. 15 of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations omitted). “If the court determines 16 at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” 17 Fed. R. Civ. P. 12(h)(3). 18 There are two bases for federal subject matter jurisdiction: (1) federal question 19 jurisdiction under 28 U.S.C. § 1331; and (2) diversity jurisdiction under 28 U.S.C. § 20 1332. A district court has federal question jurisdiction in “all civil actions arising under 21 the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal 22 question jurisdiction exists only when a federal question is presented on the face of the 23 plaintiff’s well-pleaded complaint. Aetna Health Inc. v. Davila, 542 U.S. 200, 207 24 (2004); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). A district court has 25 diversity jurisdiction “where the matter in controversy exceeds the sum or value of 26 27 28 1 $75,000, . . . . and is between --citizens of different states, or citizens of a State and 2 citizens or subjects of a foreign state . . . .” 28 U.S.C. §§ 1332(a)(1)-(2). 3 Here, Plaintiff alleges that federal question jurisdiction exists (1) pursuant to Rule 4 60(d) because Defendant committed fraud upon the state court and (2) pursuant to the 5 Fifth and Fourteenth Amendments because Defendant violated Plaintiff’s Fifth and 6 Fourteenth Amendment rights.3 (Dkt. No. 4.) Plaintiff first asserts that federal 7 jurisdiction is proper under Rule 60(d), which allows a federal court to entertain an 8 “independent action” to set aside a judgment procured by fraud on the court. (Dkt. No. 4 9 at 1–3.) 10 Rule 60(d) provides that a court has the power to “(1) entertain an independent 11 action to relieve a party from a judgment, order, or proceeding; (2) grant relief under 28 12 U.S.C. § 1655 to a defendant who was not personally notified of the action; or (3) set 13 aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d). This language has been 14 interpreted as allowing a party to either file a motion within the same case under Rule 15 60(b), or to file an entirely new complaint under Rule 60(d). Wood v. McEwan, 644 F.2d 16 797, 801 (9th Cir. 1981). However, “[w]hen the prior judgment attacked in the 17 ‘independent action’ is that of a different court, the new court must be one having 18 ‘independent and substantive equity jurisdiction.’” Carney v. United States, 462 F.2d 19 1142, 1144 (Ct. Cl. 1972); Bankers Mortg. Co. v. United States, 423 F.2d 73, 79 (5th Cir. 20 1970); Jovaag v. Ott, No. 12cv3316 RMW, 2012 WL 3686087, at *2 (N.D. Cal. Aug. 24, 21 2012). Accordingly, Rule 60(d) does not provide an independent basis for federal 22 jurisdiction. Here, the FAC asserts state law claims of fraud. Therefore, this Court does 23

24 25 3 The Court notes that on March 27, 2017, Plaintiff filed a Notice of Removal of his case in state probate court, raising similar claims. See Bosio v. Lemke, Case No. 17cv610 JLS(AGS), 2017 WL 2644669, at *1 (S.D. Cal. 26 June 20, 2017). However, on June 20, 2017, this Court remanded the case holding that there was “no federal 27 question presented in Plaintiff’s underlying complaint. This is solely a probate action governed by California law.” Id. at *2. 28 ! |) not have “independent” jurisdiction to entertain Plaintiffs first amended complaint 2 because a federal question is not presented on the face of his first amended complaint. 3 See Holder v. Simon, 384 Fed. App’x 669, at *1 (9th Cir. 2010) (unpublished) (district 4 |) court properly dismissed plaintiff complaint sua sponte as “Rule 60(b) does not provide a > || basis for subject matter jurisdiction over a claim for relief from a state court judgment’). 6 Additionally, in the FAC, Plaintiff offers conclusory allegations that Defendant 7 || violated his rights under the Fifth and Fourteenth Amendments, which allegedly support 8 || this Court’s jurisdiction. (Dkt. No. 4 at 28.) It is well established that the Fifth ? || Amendment applies to federal actors and the Fourteenth Amendment applies to state 10 || actors. Betts v. Brady, 316 U.S. 455, 462 (1942) (“Due process of law is secured against 11 || invasion by the federal Government by the Fifth Amendment and is safeguarded against 12 || state action in identical words by the Fourteenth.”) (overruled on other grounds by 13 || Gideon v. Wainwright, 372 U.S. 335 (1963)). Here, Plaintiff's citations to the Federal 14 |! Constitution are unavailing as Defendant is not alleged to be a federal or state actor. 15 || Therefore, Plaintiff cannot invoke this Court’s jurisdiction based on allegations that 16 || Defendant violated Plaintiff's constitutional rights. 17 Accordingly, the Court concludes that it does not have subject matter jurisdiction 18 |! over the first amended complaint. 19 50 Conclusion Based on the above, the Court sua sponte DISMISSES without prejudice the first amended complaint for lack of subject matter jurisdiction. IT IS SO ORDERED. Dated: March 24, 2020 <=

25 United States District Judge 26 27 28