(PS) Peacemaker v. Mitchell

• Court: District Court, E.D. California
• Decided: November 7, 2024
• Docket: 2:21-cv-01715
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHIRLY A. PEACEMAKER, Case No. 2:21-cv-1715-DC-JDP (PS) 12 Plaintiff, 13 v. ORDER TO SHOW CAUSE 14 MONICA MITCHELL, et al., 15 Defendants. 16 17 I previously granted plaintiff’s application to proceed in forma pauperis and screened her 18 original complaint. ECF No. 5. I notified plaintiff that the complaint failed to establish a basis 19 for the court’s jurisdiction and granted her thirty days to file an amended complaint. Id. Plaintiff 20 subsequently filed an amended complaint and paid the filing fee. ECF No. 6. To date, none of 21 the defendants have appeared. Plaintiff has filed a purported proof of service reflecting that she 22 attempted to serve defendant Monica Mitchell on January 10, 2023. ECF No. 13. However, that 23 filing indicates that plaintiff attempted to complete service by delivering a copy of the summons 24 and complaint to an individual named Phoenix Robbins. Id. 25 Pursuant to Rule 4 of the Federal Rules of Civil Procedure, an individual may be served 26 by: (1) delivering a copy of the summons and the complaint to that person personally; (2) leaving 27 a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age 28 and discretion who resides there; or (3) delivering a copy of each to an agent authorized to accept 1 service. Fed. R. Civ. P. 4(e)(2)(A)-(C). Plaintiff’s proof of service does not demonstrate that 2 copies of the summons and complaint were left at defendant Mitchell’s usual place of abode or 3 that Phoenix Robbins is an agent authorized to accept service for Mitchell. Indeed, the proof of 4 service provides no information related to Phoenix Robbins. Accordingly, it does not appear 5 plaintiff properly served Mitchell. 6 The Federal Rules provide that “[i]f a defendant is not served within 90 days after the 7 complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss 8 the action without prejudice against that defendant or order that service be made within a 9 specified time.” Fed. R. Civ. P. 4(m). However, “if the plaintiff shows good cause for the 10 failure, the court must extend the time for service for an appropriate period.” Id. Although a pro 11 se litigants are generally afforded more latitude than one represented by counsel, a party’s pro se 12 status does not constitute “good cause” for failing to timely effect service. See King v. Atiyeh, 13 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that 14 govern other litigants.”); Townsel v. Contra Costa Cnty., 820 F.2d 319, 320 (9th Cir. 1987) 15 (holding that ignorance of service requirements does not constitute “good cause” for failure to 16 timely effect service); see also E.D. Cal. L.R. 183(a) (“Any individual representing himself or 17 herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these 18 Rules, and all other applicable law.”). Accordingly, plaintiff will be ordered to show cause why 19 her claims against Mitchell should not be dismissed for failure to timely effect service of process. 20 I have also reviewed plaintiff’s first amended complaint and find that, like the original 21 complaint, it fails to establish a basis for the court’s subject matter jurisdiction. A district court 22 has an independent duty to ascertain its jurisdiction. See 28 U.S.C. § 1447(c). The basic federal 23 jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal question” and “diversity” 24 jurisdiction, respectively. Federal question jurisdiction requires that the complaint (1) arise under 25 a federal law or the U. S. Constitution, (2) allege a “case or controversy” within the meaning of 26 Article III, § 2 of the U. S. Constitution, or (3) be authorized by a federal statute that both 27 regulates a specific subject matter and confers federal jurisdiction. Baker v. Carr, 369 U.S. 186, 28 198 (1962). To invoke the court’s diversity jurisdiction, a plaintiff must specifically allege the 1 diverse citizenship of all parties, and that the matter in controversy exceeds $75,000. 28 U.S.C. 2 § 1332(a); Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A 3 case presumably lies outside the jurisdiction of the federal courts unless demonstrated otherwise. 4 Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376-78 (1994). Lack of subject 5 matter jurisdiction may be raised at any time by either party or by the court. Attorneys Trust v. 6 Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 7 The amended complaint seeks to allege claims against defendant Mitchell and five other 8 individuals related to rent increases plaintiff received from All Star MHP.1 ECF No. 6 at 2-5, 66- 9 69, 74-77. It states that the basis for jurisdiction is the Declaration of Independence and the Sixth 10 and Thirteenth Amendments to the United States Constitution. Id. at 4. Plaintiff’s conclusory 11 reference to the Sixth and Thirteenth Amendments are insufficient to invoke federal question 12 jurisdiction. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (“The presence or 13 absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which 14 provides that federal jurisdiction exists only when a federal question is presented on the face of 15 the plaintiff’s properly pleaded complaint.”); Renfo v. Swift Transportation, No. 1:17-cv-1349- 16 LJO-BAM, 2018 WL 2734916, *2 (E.D. Cal. June 7, 2018) (holding that the plaintiff’s vague and 17 conclusory references to federal statutes, were insufficient to invoke federal question 18 jurisdiction); Easton v. Crossland Mortgage Corp., 114 F.3d 979, 982 (9th Cir. 1997) (“[T]he 19 mere reference of a federal statute in a pleading will not convert a state law claim into a federal 20 cause of action if the federal statute is not a necessary element of the state law claim and no 21 preemption exists.”) (per curiam).2 22 Accordingly, it is hereby ORDERED that: 23 1. Plaintiff shall show cause within fourteen days from the date of this order why this 24 1 The Clerk of Court only issued a summons for defendant Mitchell, who was the sole 25 defendant named in the original complaint. Given that the plaintiff has not established subject matter jurisdiction, I decline to direct the Clerk of Court to issue summonses for the additional 26 defendants named in the first amended complaint. Should plaintiff establish a basis for 27 jurisdiction, I will order that a summons issue for each defendant. 2 The amended complaint indicates that all parties are citizens of California. ECF No. 6 at 28 2-3. Thus, diversity jurisdiction also appears to be absent. 1 | action should not be dismissed for lack of subject matter jurisdiction. 2 2. Plaintiff shall also show cause within fourteen days why her claims against defendant 3 | Mitchell should not be dismissed for failure to effect service of process within the time prescribed 4 | by Rule 4(m). 5 3. Plaintiff is warned that failure to respond to this order will result in a recommendation 6 | that this action be dismissed without prejudice for failure to effect services of process. 7 g IT IS SO ORDERED.

Dated: _ November 7, 2024 Q_—_—. 10 JEREMY D. PETERSON i UNITED STATES MAGISTRATE JUDGE

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