Opinion
3:24-cv-01319-SB
09-24-2024
JASMINE DOVE ANNA GRAHAM, Plaintiff, v. TERRY FAMILY FUNERAL HOME, Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
The Court previously concluded that Plaintiff Jasmine Graham (“Graham”), an Oregon resident proceeding as a self-represented litigant, was indigent for purposes of 28 U.S.C. § 1915, and therefore granted Graham's application to proceed in forma pauperis (“IFP”). Graham's complaint is subject to screening and sua sponte dismissal under 28 U.S.C. § 1915(e)(2) because the Court granted Graham's IFP application. See, e.g., Stephens v. Biden, N o. 323-cv-00817, 2024 WL 554274, at *1 (D. Or. Jan. 26, 2024) (recognizing that IFP complaints are subject to sua sponte dismissal), findings and recommendation adopted, 2024 WL 665177, at *1 (D. Or. Feb. 15, 2024). For the reasons explained below, the Court recommends that the district judge dismiss Graham's complaint without prejudice to Graham seeking relief in state court on her state law claims.
BACKGROUND
Graham filed three IFP actions in this district on August 12, 2024. First, Graham filed an IFP action against Carmen Lynn Butcher, a Washington resident, alleging that in June 2022, Carmen Butcher improperly and without authorization picked up Graham's son's ashes from Terry Family Funeral Home, an Oregon corporation doing business under this name. Complaint at 1-5, Graham v. Butcher, Case No. 3:24-cv-01317-SB (D. Or. Aug. 12, 2024), ECF No. 2.
The Court takes judicial notice that according to the Oregon Secretary of State's website, Terry Family Funeral Home is the assumed business name of Terry Family Funeral Home, Inc., an Oregon corporation with its principal place of business in Portland, Oregon. See Hogan v. N.W. Tr. Servs., Inc., No. 10-cv-06027-HO, 2010 WL 1872990, at *3 (D. Or. May 7, 2010) (taking “judicial notice that according to the Oregon Secretary of State's public records, Halligan & Associates is the assumed business name of KDW, Inc., an Oregon corporation with a principal place of business in Bend, Oregon,” as “the information contained on the Secretary of State's corporation division's public website cannot reasonably be disputed”), aff'd, 441 Fed.Appx. 490 (9th Cir. 2011); FED. R. EVID. 201(c)(1) (“[A] court . . . may take judicial notice on its own[.]”).
Second, Graham filed an IFP action against Bryan Lynn Butcher, Sr., a Washington resident, alleging that on May 6, 2022, Bryan Butcher visited Graham's home and stole Graham's son's belongings, and that Bryan Butcher continues to possess Graham's son's guns and personal diary. See Complaint at 1-5, Graham v. Butcher, Case No. 3:24-cv-01318-SB (D. Or. Aug. 12, 2024), ECF No. 2.
Third, Graham filed an IFP action against Terry Family Funeral Home alleging that on June 28, 2022, Terry Family Funeral Home released Graham's son's ashes to Carmen Butcher, even though it lacked the authorization to do so. (Compl. at 1-5, ECF No. 2.)
The Court at times refers to Graham's cases as Graham I, Graham II, and Graham III, respectively. As explained in the Discussion section, because Graham I and Graham III relate to essentially the same subject matter and involve certain jurisdictional deficiencies, the Court's opinions in Graham I and Graham III must address the relevant facts and analyses from each case. For the sake of completeness and clarity, the Court has simultaneously docketed opinions in Graham I and Graham III that are identical, except for (1) case- and docket-specific citations, (2) the case captions, and (3) the Conclusion describing the Court's recommendations to the district judge.
In her first two cases, Graham invokes this Court's federal question jurisdiction under 28 U.S.C. § 1331 but does not identify any “specific federal statutes, federal treatises, and/or provisions of the United States Constitution that are at issue in th[e] case,” and instead identifies the cases as tort actions for personal property damage. See, e.g., Complaint at 3 & Civil Cover Sheet at 1, Graham v. Butcher, Case No. 3:24-cv-01317-SB (D. Or. Aug. 12, 2024), ECF Nos. 2 and 2-1 (failing to identify any basis for invoking federal question jurisdiction and identifying the case as a tort action for personal property damage). In her third case, Graham's complaint similarly invokes this Court's federal question jurisdiction and does not identify any “specific federal statutes, federal treatises, and/or provisions of the United States Constitution that are at issue in th[e] case,” but Graham's civil cover sheet refers to the case as an action under the Administrative Procedures Act (“APA”). (See Compl. at 3; Civ. Cover Sheet at 1, ECF No. 2-1.)
In terms of relief, Graham's initial complaint seeks (1) $150,000 in punitive damages, (2) $150,000 for “[e]motional distress,” (3) $150,000 for “[m]ental anguish,” and (4) $150,000 for committing an “[i]ntentional [t]ort.” See Complaint at 4, Graham v. Butcher, Case No. 3:24-cv-01317-SB (D. Or. Aug. 12, 2024), ECF No. 2. Similar to Graham's initial complaint, the Graham II and Graham III complaints seek (1) $150,000 in punitive damages, (2) $150,000 for “[m]ental [a]nguish,” and (3) $150,000 for committing an “[e]motional tort.” Complaint at 4, Graham v. Butcher, Case No. 3:24-cv-01318-SB (D. Or. Aug. 12, 2024), ECF No. 2; (Compl. at 4).
LEGAL STANDARDS
“The federal [IFP] statute, codified at 28 U.S.C. § 1915, allows an indigent litigant to commence a civil . . . action in federal court without paying the administrative costs of proceeding with the lawsuit.” Denton v. Hernandez, 504 U.S. 25, 27 (1992). The IFP statute provides, in relevant part, that a “court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that “section 1915(e) applies to all . . . [IFP] complaints, not just those filed by [adults in custody]”). In other words, the IFP statute mandates sua sponte dismissal on these grounds. See Hebrard v. Nofziger, 90 F.4th 1000, 1006-07 (9th Cir. 2024) (failure to state a claim); Chavez v. Robinson, 817 F.3d 1162, 1167-68 (9th Cir. 2016) (noting that “§ 1915 [initially] required courts to dismiss only those cases that were frivolous or malicious” but now also mandates sua sponte dismissal of cases against a defendant who is entitled to immunity) (simplified).
DISCUSSION
The Court begins by addressing whether it has subject matter jurisdiction over this matter. The Court does so because it is “obligated to consider sua sponte whether it has subject matter jurisdiction[.]” Bledsoe v. San Joaquin Cnty. Super. Ct., No. 23-15805, 2024 WL 1328771, at *1 (9th Cir. Mar. 28, 2024) (citing Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“Courts do not usually raise claims or arguments on their own. But federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.”).
I. APPLICABLE LAW
“The district courts of the United States are courts of limited jurisdiction, defined (within constitutional bounds) by federal statute.” Badgerow v. Walters, 596 U.S. 1, 7 (2022) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). As the Supreme Court has explained, “Congress has granted [federal] courts jurisdiction over two main kinds of cases.” Id. First, federal courts “have power to decide federal-question cases-suits ‘arising under' federal law[, which] [t]ypically . . . [means that] federal law . . . ‘create[d] the cause of action asserted.'” Id. at 7-8 (citing 28 U.S.C. § 1331 and quoting Gunn v. Minton, 568 U.S. 251, 257 (2013)). Second, federal “courts have power to decide diversity cases-suits between citizens of different States as to any matter valued at more than $75,000.” Id. at 7 (citing 28 U.S.C. § 1332(a)).
II. ANALYSIS
A. Graham I and Graham III
1. Federal Question Jurisdiction
The Court finds that Graham has failed to meet her burden of establishing federal question jurisdiction in Graham I and Graham III. SeeKokkonen, 511 U.S. at 377 (“Federal courts are courts of limited jurisdiction.... It is to be presumed that a cause lies outside this limited jurisdiction, .... and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]”) (citations omitted); Bledsoe, 2024 WL 1328771, at *1 (“[A] plaintiff has the burden of establishing subject matter jurisdiction[.]” (citing Ashoff v. City of Ukiah, 130 F.3d 409, 410 (9th Cir. 1997))).
A. Graham I
In Graham I, Graham invokes the Court's federal question jurisdiction under 28 U.S.C. § 1331 but does not identify any “specific federal statutes, federal treatises, and/or provisions of the United States Constitution that are at issue in th[e] case,” and instead refers to the case as a tort action for personal property damage. See Complaint at 3 & Civil Cover Sheet at 1, Graham v. Butcher, Case No. 3:24-cv-01317-SB (D. Or. Aug. 12, 2024), ECF Nos. 2 and 2-1 (failing to identify a basis for federal question jurisdiction, and listing the case as a tort action for personal property damage). In terms of factual allegations, Graham, an Oregon resident, alleges that in June 2022, Carmen Butcher, a Washington resident, improperly and without authorization picked up Graham's son's ashes from Terry Family Funeral Home, an Oregon corporation. Complaint at 1-5, Graham v. Butcher, Case No. 3:24-cv-01317-SB (D. Or. Aug. 12, 2024), ECF No. 2.
Graham fails to allege any specific violation of federal law or plead any facts suggesting that she may have a colorable claim arising under federal law. Accordingly, Graham fails to satisfy her burden of establishing federal question jurisdiction in Graham I. See Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006) (“A plaintiff properly invokes § 1331 jurisdiction when she pleads a colorable claim ‘arising under' the Constitution or laws of the United States.”) (citation omitted); Strubel v. SAIF Corp., 848 Fed.Appx. 745, 746 (9th Cir. 2021) (holding that “[t]he district court properly dismissed [the self-represented plaintiff's] action for lack of subject matter jurisdiction,” in part because he failed to allege “any violation of federal law” in the operative complaint).
b. Graham III
In Graham III, Graham similarly invokes this Court's federal question jurisdiction under 28 U.S.C. § 1331 and does not identify any “specific federal statutes, federal treatises, and/or provisions of the United States Constitution that are at issue in th[e] case,” but instead identifies to the case as an action under APA. (See Compl. at 1-5; Civ. Cover Sheet at 1.) In terms of factual allegations, Graham alleges that on June 28, 2022, Terry Family Funeral Home released Graham's son's ashes to Carmen Butcher, even though it lacked the authorization to do so. (Compl. at 1-5; Civ. Cover Sheet at 1.) In other words, Graham complains of the same transaction and events at issue in Graham I.
Graham fails to allege any specific violation of federal law or plead any facts suggesting that she may have a colorable claim arising under federal law. As a result, Graham fails to satisfy her burden of establishing federal question jurisdiction in Graham III. See Arbaugh, 546 U.S. at 513 (describing proper invocation of § 1331); Strubel, 848 Fed.Appx. at 746 (affirming a dismissal for lack of subject matter jurisdiction where the plaintiff “failed to allege any violation of federal law”).
Graham's reliance on the APA does not change this result. On her cover sheet, Graham suggests that she filed this case pursuant to the APA, and incorrectly identifies a “U.S. Government Plaintiff” as a basis for jurisdiction. (See Civ. Cover Sheet at 1.) “The United States and its agencies have sovereign immunity in federal court unless that immunity is waived[, and thus] . . . ‘[t]he ‘waiver of sovereign immunity . . . a prerequisite to federal-court jurisdiction.'” Meyer v. FBI, No. 3:22-cv-01779-SI, 2022 WL 17269643, at *3 (D. Or. Nov. 29, 2022) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980) and quoting Tobar v. United States, 639 F.3d 1191, 1195 (9th Cir. 2011)). Although the APA “[w]aive[s] sovereign immunity for final agency action,” id. (citing 5 U.S.C. § 702), Graham has not alleged any facts demonstrating that a final agency action (within the meaning of the APA) is at issue here, and may not assert an APA claim against a private party. See Shell Gulf of Mex. Inc. v. Ctr. Biological Diversity, Inc., 771 F.3d 632, 636 (9th Cir. 2014) (“A claim under the APA cannot be asserted against a private party.”). Accordingly, Graham fails to allege a cognizable APA claim and cannot cure this deficiency.
2. Diversity Jurisdiction
The Court next addresses whether Graham has established diversity jurisdiction in Graham I and Graham III.
In both Graham I and Graham III, Graham seeks more than $75,000 in damages from Carmen Butcher and Terry Family Funeral Home, respectively. Complaint at 4, Graham v. Butcher, Case No. 3:24-cv-01317-SB (D. Or. Aug. 12, 2024), ECF No. 2; (Compl. at 4). In Graham I, Graham also presents a claim between parties of diverse citizenship-namely, Graham, an Oregon resident, and Carmen Butcher, a Washington resident. Complaint at 3, Graham v. Butcher, Case No. 3:24-cv-01317-SB (D. Or. Aug. 12, 2024), ECF No. 2.
In Graham III, by contrast, Graham does not present a claim between parties of diverse citizenship: Graham is an Oregon resident and Terry Family Funeral Home is an Oregon corporation doing business under this name. (See Compl. at 3-4; Civ. Cover Sheet at 1.) Graham's allegations in Graham III fail to establish diversity jurisdiction, as the complete diversity requirement is not met. See Arbaugh, 546 U.S. at 513 (noting that to invoke diversity jurisdiction, a plaintiff must “present[] a claim between parties of diverse citizenship that exceeds the required jurisdictional amount, currently $75,000” (citing 28 U.S.C. § 1332(a))). Thus, Graham failed to meet her burden of establishing subject matter jurisdiction in Graham III, and Graham III is subject to dismissal without prejudice. See Guzman v. Polaris Indus. Inc., 49 F.4th 1308, 1314 (9th Cir. 2022) (“Dismissals for lack of jurisdiction should be without prejudice so that a plaintiff may reassert his claims in a competent court.” (ellipses omitted) (quoting Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999))); see also Kelley v. JPMorgan Chase Bank, N.A., 713 Fed.Appx. 632, 633 (9th Cir. 2018) (“Because a dismissal for lack of subject matter jurisdiction should be without prejudice, . . . we remand . . . with instructions to amend the judgment to reflect that the dismissal . . . [was] without prejudice.”).
In Graham I, Graham's allegations are sufficient to establish diversity jurisdiction. Notably, however, Graham has filed separate tort-related actions (Graham I and Graham III) against a diverse party (Carmen Butcher) and nondiverse party (Terry Family Funeral Home), even though both actions involve essentially the same subject matter: whether, in June 2022, Carmen Butcher improperly and without authorization picked up Graham's son's ashes from Terry Family Funeral Home, and whether Terry Family Funeral Home improperly released Graham's son's ashes to Carmen Butcher. See Complaint at 4, Graham v. Butcher, Case No. 3:24-cv-01317-SB (D. Or. Aug. 12, 2024), ECF No. 2 (seeking $600,000 in punitive, “[e]motional distress,” “[m]ental anguish,” “[i]ntentional [t]ort”-related damages based on Carmen Butcher's unauthorized acquisition of Graham's son's ashes); (Compl. at 4, seeking $450,000 in punitive, “[m]ental [a]nguish,” and “[e]motional tort”-related damages based on Terry Family Funeral Home's unauthorized release of Graham's son's ashes to Carmen Butcher).
Under these circumstances, the Court may (and does below) consider sua sponte whether Graham failed to join an indispensable party in Graham I. See Republic of Philippines v. Pimentel, 553 U.S. 851, 861 (2008) (“A court with proper jurisdiction may . . . consider sua sponte the absence of a required person and dismiss for failure to join.”); CP Nat'l Corp. v. Bonneville Power Admin., 928 F.2d 905, 911-12 (9th Cir. 1991) (“The absence of ‘necessary' parties may be raised by reviewing courts sua sponte.... The issue can be properly raised at any stage in the proceeding.”) (citation omitted); Deschutes River All. v. Portland Gen. Elec. Co., 323 F.Supp.3d 1171, 1177 (D. Or. 2018) (quoting Pimentel); Schwartz v. Christiana Tr., No. 3:15-cv-02075-PK, 2016 WL 8711507, at *2 n.1 (D. Or. Jan. 22, 2016) (noting that the court had “authority to consider required joinder of parties sua sponte” (citing Pimentel, 553 U.S. at 861 and CP Nat'l Corp., 928 F.2d at 911)); see also Cook v. FDA, 733 F.3d 1, 6 (D.C. Cir. 2013) (recognizing that the court had an “independent duty to raise a Rule 19(a) issue sua sponte”) (simplified).
There are cases that “speak of nonjoinder as ousting the court of jurisdiction,” and “there is some truth to the statement [that] . . . ‘[i]n diversity cases, the question of indispensable parties is inherent in the issue of federal jurisdiction.'” 7 Charles Alan Wright et al., Federal Practice and Procedure § 1611 & n.25 (3d ed. June 2024 update) (citing Clinton v. Int'l Org. of Master, Mates & Pilots of Am., Inc., 254 F.2d 370, 372 (9th Cir. 1958) (per curiam)); see also Clinton, 254 F.2d at 371-72 (affirming “dismissal for lack of jurisdiction” based on a lack of admiralty, federal question, and diversity jurisdiction, and stating that “[d]iversity jurisdiction may not be artificially created by failing to join parties indispensable to the action”); Callister & Assocs., LLC v. Javlin Nine LLC, No. 2:18-cv-01892, 2019 WL 11542359, at *2-4 (D. Nev. Aug. 29, 2019) (stating the same and dismissing for lack of subject matter jurisdiction (citing Clinton, 254 F.2d at 372)). However, “[s]ince the indispensable-party doctrine is equitable both in its origin and nature, . . . scholarly commentary as well as the vast majority of courts reject this ‘jurisdictional' characterization.” 7 Charles Alan Wright et al., supra, § 1611 & n.21 (simplified) (citing Lincoln Prop. Co. v. Roche, 546 U.S. 81, 90 (2005) and Pioche Mines Consol. v. Fid.-Phila. Tr. Co., 202 F.2d 944, 946 (9th Cir. 1953)); see also Young v. Vrechek, 615 Fed.Appx. 429, 430 (9th Cir. 2015) (affirming dismissal because the self-represented plaintiff “failed to join a required party and [could not] do so without defeating diversity,” rejecting the plaintiff's argument that Rule 19 dismissals “impermissibly limit the court's jurisdiction,” and noting that “[t]he district court dismissed . . . under Rules 12(b)(7) and 19(b); it did not find that it lacked jurisdiction,” and that “Rule 19 addresses party joinder, not federal-court subject-matter jurisdiction” (brackets omitted) (quoting Roche, 546 U.S. at 90)); Picciotto v. Cont'l Cas. Co., 512 F.3d 9, 22, n.19 (1st Cir. 2008) (“[T]he inquiry into indispensability is an equitable, not a jurisdictional, inquiry.... However, . . . where jurisdiction is founded solely on diversity of citizenship and where the indispensable party is nondiverse, the indispensability conclusion has the effect of destroying diversity and, thus, eliminating any basis for original jurisdiction.”); of. DeMartini v. DeMartini, 964 F.3d 813, 818 n.1 (9th Cir. 2020) (noting that in removed cases, 28 U.S.C. § 1447(e) “engineers a departure from the analysis required by [Rule] 19 in that it allows the joinder of a necessary non-diverse party and a subsequent remand to state court”) (simplified).
B. Required Joinder of Parties
The case examples below detail how courts have resolved comparable Rule 19(a) issues. Before turning to these case examples, the Court briefly summarizes Rule 19's requirements.
1. Rule 19's Requirements
The Ninth Circuit has “held that Rule 19 requires a three-step inquiry.” Jamul Action Comm. v. Simermeyer, 974 F.3d 984, 991 (9th Cir. 2020) (citing Salt River Project Agric. Improvement & Power Dist. v. Lee, 672 F.3d 1176, 1179 (9th Cir. 2012)). First, a court “examine[s] whether the absent party must be joined under Rule 19(a).” Klamath Irrigation Dist. v. U.S. Bureau of Reclamation, 48 F.4th 934, 943 (9th Cir. 2022). Second, a court “determine[s] whether joinder of that party is feasible.” Id. Finally, if joinder is not feasible, a court “must ‘determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.'” Id. (quoting FED. R. CIV. P. 19(b)); see also E.E.O.C. v. Peabody W. Coal Co., 400 F.3d 774, 779 (9th Cir. 2005) (“Rule 19(a) sets forth the circumstances in which joinder is not feasible . . ., [such as] when joinder would destroy subject matter jurisdiction”).
2. Case Examples
Courts have dismissed plaintiffs' IFP actions at the screening stage for failing to join an indispensable party. For example, in Jaax v. United States, No. 08-cv-00456, 2008 WL 4601298, at *1 (D. Haw. Oct. 15, 2008), the district court screened the self-represented plaintiff's IFP complaint and “dismisse[d] th[e] action for failure to join an indispensable party.” Id. The district court noted, at the outset, that the plaintiff sought “the suspension of trading on all United States stock markets to allow emergency regulatory reform to stabilize the United States and global economies,” but the plaintiff did “not name as a party to this action anyone who control[led] any private stock market” and “there [was] no defendant that [the district] court could possibly order to shut down the stock markets.” Id. After describing Rule 19's three-step inquiry, the district court held that the plaintiff failed to join a required party, joinder of that party was not feasible, and dismissal was appropriate because the case could not proceed without the required party:
“Before 2007, parties that are now called ‘required' under Rule 19 were referred to as ‘necessary,' and parties without whom the litigation could not, in good conscience, continue, were referred to as ‘indispensable.'” Dine Citizens Against Ruining Our Env't v. Bureau of Indian Affs., 932 F.3d 843, 851 n.5 (9th Cir. 2019) (quoting Pimentel, 553 U.S. at 855-56). Although “Rule 19 was revised in 2007, . . . the revisions were intended to be only ‘stylistic,' and the Supreme Court has interpreted them as such.” Id. (quoting Pimentel, 553 U.S. at 855).
[The plaintiff] fails to name indispensable parties that should be joined under Rule 19(a). For example, in seeking to suspend trading on all United States stock markets, [the plaintiff] necessarily seeks to halt trading on the New York Stock Exchange. However, the New York Stock Exchange's interests are not represented in this matter, as no defendant is named representing its interests. Even if such a defendant were named or could be joined, [the plaintiff] fails to allege facts demonstrating how this court would have personal jurisdiction over it or how venue would be appropriate.... [The plaintiff's] [c]omplaint does not even allege that any act or harm to [the plaintiff] has occurred in [this district]. It therefore does not appear to be feasible to join a defendant representing the stock market's interest in this matter.
Because it does not appear that [the plaintiff] could properly name a defendant to represent the New York Stock Exchange in this action, and because joinder of such a party is necessary to grant [the plaintiff] the relief he seeks, the court dismisses this action, as the factors listed in Rule 19(b) favor dismissal. Certainly, enjoining trading on the New York Stock Exchange would prejudice it if it were not a party to this action, and there is no means by which this court could lessen that prejudice. This court also doubts that it could require the United States to somehow shut down all stock exchanges merely because it regulates them.... The court also notes that, although it is dismissing this action, [the plaintiff] has an identical action proceeding in California [federal district court], indicating that dismissal of this action will not prejudice [the plaintiff].
The [plaintiff's] [c]omplaint fails to state a claim upon which relief can be granted because it fails to assert claims against a defendant that could be ordered to close the stock markets. Accordingly, the court dismisses the [c]omplaint and denies as moot the [the plaintiff's IFP] [a]pplication and . . . motion for temporary restraining order. Although this court would normally grant [the plaintiff] leave to amend the [c]omplaint, it declines to do so in light of the ongoing, identical complaint filed in [California federal district court]....Id. at *2-3.
Similarly, in Cunningham v. National Broadcasting Co., Inc., No. 95-cv-01833-MA, 1996 WL 498130, at *1-3 (D. Or. Mar. 6, 1996), aff'd, 133 F.3d 926 (9th Cir. 1997), the district court dismissed a self-represented plaintiff's action without prejudice to refiling in state court because a nondiverse party's “joinder would [have] destroy[ed] diversity jurisdiction.” Id. The plaintiff-an Oregon resident who initially named only diverse, “non-Oregon residents as defendants”-filed a “second amended complaint” (without leave to do so) naming additional “Oregon residents as defendants[,] which destroyed complete diversity.” Id. at *1. After the district court “accepted” the plaintiff's second amended complaint, the plaintiff filed “motions to dismiss [the] non-diverse defendants (without prejudice) and [for leave] to file a third amended complaint adding a federal . . . claim.” Id. The original defendants opposed the plaintiff's motions arguing that “the plaintiff ha[d] failed to state a federal . . . claim and that dismissal of [the] non-diverse parties would be improper under [Rule] 19 because [the principal national defendant's] local, Oregon affiliate [was] an indispensable party whose joinder would destroy diversity jurisdiction.” Id.
Although the district court granted the plaintiff's motion for leave to amend, the district court explained that the “plaintiff's third amended complaint [was] . . . subject to dismissal based upon [his] failure to state a federal claim . . . and the absence of indispensable parties.” Id. at *2-3. With respect to the latter issue, the district court determined that Rule 19(b)'s factors favored dismissal of the plaintiff's third amended complaint without prejudice to refiling in state court. Id. at *3. In support, the district court made the following findings regarding the extent to which a judgment might prejudice an absent party, the extent to which prejudice could be lessened or avoided, the adequacy of a potential judgment, and the availability of an adequate post-dismissal remedy:
1. the “primary[]” non-diverse party at issue-i.e., the Oregon-based affiliate of the diverse, originally named, and principal national broadcasting defendant- “face[d] potential state court claims [upon] the resolution of [the federal] action”;
2. if the national broadcasting defendant was “found liable [on the plaintiff's state law claim, such an outcome] could prejudice [the Oregon affiliate's] opportunity for favorable resolution in state court”;
3. given its indemnity agreement with the Oregon affiliate, the national broadcasting defendant “face[d] a risk of duplicative and possibly inconsistent rulings”;
4. the plaintiff's request to “dismiss [all nondiverse] parties without prejudice . . . suggest[ed] that [the plaintiff] intend[ed] to proceed with claims against [these parties] in state court,” and the plaintiff had not agreed to do otherwise; and
5. the plaintiff had “a ready and available alternative forum for his allegations in state court” where “[a]ll of his claims could be fully and adequately addressed as against all named defendants,” and therefore “state court provide[d] a more appropriate forum for the litigation of all related claims.”Id. For all of these reasons, the district court held that the nondiverse Oregon affiliate was “an indispensable party whose joinder would destroy diversity jurisdiction,” and “dismissal [was] appropriate” given “the possibility of duplicative litigation and the availability of an alternative forum[.]” Id.
A similar (albeit distinguishable) outcome was reached in Burns v. Femiani, 786 Fed.Appx. 375, 378 (3d Cir. 2019) (per curiam). In Burns, the district court concluded that the selfrepresented plaintiffs “were indigent for purposes of 28 U.S.C. § 1915, [and] . . . screened the complaint under § 1915(e)(2)(B).” Id. The district court “determined that it lacked jurisdiction and dismissed the complaint without prejudice to the [the plaintiff] seeking relief in state court on their state law claims.” Id. In affirming the district court's order “dismissing [the plaintiffs'] complaint for lack of subject matter jurisdiction and declining to exercise supplemental jurisdiction over [the plaintiffs'] state-law claims,” the Third Circuit “agree[d]” with the district court that the plaintiffs failed to meet their burden of establishing subject matter jurisdiction. Id. at 377-79.
With respect to diversity jurisdiction, the Third Circuit explained that judicially noticeable public records confirmed that the plaintiffs and one of the defendants were citizens of the same state, and thus “the necessary complete diversity [was] lacking.” Id. at 378-79. Turning to the plaintiffs' argument that the district “should have provided them leave to amend the complaint to remove [the nondiverse party] as a defendant in order to create complete diversity of parties,” the Third Circuit observed that it had previously “held that a court may not sua sponte dismiss a complaint for failure to state a claim or for lack of personal jurisdiction without first permitting the plaintiff to file a curative amendment,” and that “the same principle applie[d] to a dismissal of a complaint for lack of subject matter jurisdiction, unless the defect is clearly incurable.” Id. (simplified). Nevertheless, the Third Circuit held that “[u]nder the circumstances [presented], the [d]istrict [c]ourt did not abuse its discretion in failing to allow leave to amend.” Id. The Third Circuit explained that the jurisdictional defect was incurable and sua sponte dismissal without leave to amend was appropriate because the defendant was an indispensable, nondiverse party and the district court was unable to perfect its diversity jurisdiction by dropping such a defendant:
Courts may allow a “dispensable nondiverse party to be dropped at any time.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989); Publicker Indus., Inc. v. Roman Ceramics Corp., 603 F.2d 1065, 1068-69 (3d Cir. 1979). We agree with [the defendants] that [the nondiverse co-defendant] is an indispensable party and therefore he cannot be dismissed to create diversity jurisdiction. See FED. R. CIV. P. 19(b). A party is indispensable if judgment in their absence would be prejudicial to that party and other parties. See FED. R. CIV. P. 19(b). The complaint alleges that [the nondiverse defendant] was a “coconspirator” whose “fraudulent, and willful, wanton, and intentional conduct” included providing a fraudulent appraisal which significantly minimized the actual damage to [the plaintiff husband's] vehicle and supported the conclusion that it was only “lightly hit” once.... Although co-conspirators are not necessarily indispensable parties, see Casas Off. Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 677 (1st Cir. 1994), under the circumstances [in] this case, where [the nondiverse defendant's] allegedly fraudulent appraisal is integral to the [the plaintiffs'] underlying insurance claim, the parties have a substantial interest in his presence in the case. Accordingly, because the defect cannot be cured, the [d]istrict [c]ourt's sua sponte dismissal without leave to amend was proper.Id. at 379-80. In a footnote, the Third Circuit also rejected the plaintiffs' attempt to change course on appeal:
[The plaintiffs] maintain on appeal that “[the nondiverse party] was not a proper defendant at the time of filing” and that his inclusion as a defendant was “just a terrible mistake.” See generally Newman-Green, 490 U.S. at 832 (“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”). [The plaintiffs] now contend that, “as it turns out,” [the nondiverse defendant] did a “thorough job” reviewing [the plaintiff husband's] vehicle, but that the finished appraisal appears “seriously edited,” and “[the nondiverse defendant] wouldn't have knowingly jeopardized his reputation with something like that.” . . . This attempt to shift the theory of liability is precisely the type of “gamesmanship” which the [d]istrict [c]ourt noted will not be countenanced.Id. at 380 n.4.
3. Disposition
Consistent with the authorities discussed herein, the Court finds that Terry Family Funeral Home is an indispensable party whose presence would destroy diversity jurisdiction in Graham I, and that Rule 19(b)'s factors support dismissal of Graham I without prejudice to refiling in state court. See Young, 615 Fed.Appx. at 430 (affirming dismissal where the selfrepresented plaintiff “failed to join a required party and [could not] do so without defeating diversity”).
a. The First Step
The Court must engage in a three-step inquiry under Rule 19. See Jamul, 974 F.3d at 991 (“Rule 19 requires a three-step inquiry.” (citing Salt River, 672 F.3d at 1179)). At the first step, the Court “examine[s] whether the absent party must be joined under Rule 19(a).” Klamath, 48 F.4th at 943.
Rule 19(a) provides, in relevant part, that “[a] party is a ‘required party' and must be joined [if] . . . ‘in that [party's] absence, the court cannot accord complete relief among existing parties[.]'” Id. (quoting FED. R. CIV. P. 19(a)(1)(A)). This “first joinder standard . . . prescribed in Rule 19(a)(1)(A) . . . is designed to protect those who already are parties by requiring the presence of all persons who have an interest in the litigation so that any relief that may be awarded will effectively and completely adjudicate the dispute.” 7 Charles Alan Wright et al., supra, § 1604 (footnote omitted). This first joinder “standard also furthers the interest of the public in judicial economy by avoiding repeated lawsuits involving essentially the same subject matter.” Id. As a result, “courts . . . have considered in evaluating this factor whether joinder will avoid multiple actions and potentially inconsistent verdicts,” and “[i]f so, joinder may be appropriate.” Id.
The Court finds that Terry Family Funeral Home is a “required party” in Graham I, because its presence is necessary to ensure “complete relief” among the existing parties and avoid multiple actions involving essentially the same subject matter and potentially inconsistent verdicts. See Id. (describing these interests); Deschutes, 1 F.4th at 1162-63 (stating that “Rule 19(a) requires joinder of a party whose presence is necessary to ensure complete relief among the existing parties”); Alto v. Black, 738 F.3d 1111, 1126 (9th Cir. 2013) (noting that “[c]omplete relief is concerned with consummate rather than partial or hollow relief as to those already parties, and with precluding multiple lawsuits on the same cause of action,” and that courts have considered whether the injury stemmed from the absentee's actions and related judgments) (simplified).
In so finding, the Court considered that Graham III is subject to dismissal without prejudice. See Guzman, 49 F.4th at 1314 (“Dismissals for lack of jurisdiction should be without prejudice so that a plaintiff may reassert his claims in a competent court.”) (simplified). The Court also considered that Graham III concerns an important and sensitive family matter (Graham not receiving her son's ashes), and that Graham's invocation of the Court's federal question jurisdiction in Graham III was based solely on Graham's mistaken and incurable allegations that she named a government plaintiff and may assert an APA claim against a private party. See Shell, 771 F.3d at 636 (“A claim under the APA cannot be asserted against a private party.”).
The Court's considerations support that Graham will likely continue to pursue multiple actions involving essentially the same subject matter, and Graham's ability to re-file a state court action against Terry Family Funeral Home (and potentially obtain an inconsistent verdict) “cannot be avoided in any event.” See 7 Charles Alan Wright et al., supra, § 1604 (“If multiple actions are not likely or cannot be avoided in any event, then the absentee may not be required to be joined.”).
Also relevant is that according to the Ninth Circuit and “[a]s a practical matter, an absent party's ability to protect its interest will not be impaired by its absence from the suit where its interest will be adequately represented by existing parties to the suit.” Washington v. Daley, 173 F.3d 1158, 1167 (9th Cir. 1999) (citation omitted). In evaluating “whether an absent party is adequately represented by an existing party,” courts consider, among other things, “whether the interests of a present party to the suit are such that it will undoubtedly make all of the absent party's arguments[, and] whether the party is capable of and willing to make such arguments[.]” Id. (simplified).
The Court cannot conclude that Carmen Butcher would “undoubtedly make all” of Terry Family Funeral Home's arguments or that Carmen Butcher is capable of and willing to do so. Terry Family Funeral Home's interests could diverge from Carmen Butcher's in material ways, or depend on facts of which Carmen Butcher is unaware or unrelated to Carmen Butcher's interests. See Takeda v. Nw. Nat'l Life Ins. Co., 765 F.2d 815, 818-21 (9th Cir. 1985) (finding that the absentee was a required and indispensable party, and explaining that the “initial concern [was] whether [the] plaintiffs [could] obtain complete relief from [the defendant] alone,” as it was “not clear whether [the absentee] or [the defendant] made the decisions about which [the] plaintiffs complain[ed]”).
For these reasons, the Court finds that Terry Family Funeral Home is a “required party” under Rule 19(a).
b. The Second Step
At the second step, the Court evaluates whether Terry Family Funeral Home's joinder in Graham I is feasible. See Deschutes, 1 F.4th at 1163 (noting that the second step asks “whether joinder is feasible”). Joinder of Terry Family Funeral Home is not feasible because it would deprive the Court of diversity jurisdiction. See Young, 615 Fed.Appx. at 429 (affirming dismissal under Rules 12(b)(7) and 19(b), and noting that the plaintiff could not join the required party “without defeating diversity”); Peabody, 400 F.3d at 779 (stating that “Rule 19(a) sets forth the circumstances in which joinder is not feasible,” such as “when joinder would destroy subject matter jurisdiction”).
c. The Third Step
Third and finally, “[w]hen joinder of a required party is not feasible because it would deprive the district court of subject-matter jurisdiction, Rule 19 directs the court to ‘determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.'” DeMartini, 964 F.3d at 818 (quoting FED. R. CIV. P. 19(b)); Klamath, 48 F.4th at 943. In making this determination, courts typically consider four factors: “(i) potential prejudice, (ii) possibility to reduce prejudice, (iii) adequacy of a judgment without the required party, and (iv) adequacy of a remedy with dismissal.” Klamath, 48 F.4th at 943 (citing FED. R. CIV. P. 19(b)); see also 7 Charles Alan Wright et al., supra, § 1608 (explaining that the four-factor “list in subdivision (b) [of Rule 19] does not exhaust the possible considerations the court may take into account; [rather,] it simply identifies those that will be most significant in most cases”).
The Court finds that on balance, Rule 19(b)'s equitable factors favor dismissal of Graham I. Rule 19(b)'s first factor (potential prejudice) is “partially a reiteration of portions of Rule 19(a),” and as a consequence and reflected above, the Court has “given some consideration to the possibility of prejudice in reaching its initial decision that the joinder of the absentee is required.” See 7 Charles Alan Wright et al., supra, § 1608 (stating courts “most likely will have” done so). Similar to the district court in Cunningham, the Court reiterates that Terry Family Funeral Home will likely “face[] [a] potential state court” action and “risk of duplicative and possibly inconsistent rulings” because of Graham III's dismissal without prejudice, the likelihood that Graham will continue to pursue her action against Terry Family Funeral Home, and Graham's inability to cure the deficiencies in her jurisdictional allegations. See 1996 WL 498130, at *3 (addressing Rule 19(b)'s first factor of prejudice to the absent party and making analogous findings); 7 Charles Alan Wright et al., supra, § 1608 (“[C]ourts must look to the practical likelihood of prejudice and subsequent litigation, rather than the theoretical possibility that they may occur.”).
Rule 19(b)'s second and third factors (possibility to reduce prejudice and adequacy of judgment without the required party) also favor dismissal. In Cunningham, the district court determined that the second and third factors favored dismissal without prejudice to refiling in state court, because (1) “[p]rejudice to [the nondiverse] parties [the self-represented plaintiff asked] to be dismissed [could not] be avoided unless [the] plaintiff agree[d] not to pursue claims against them in state court” and “[n]o such agreement exist[ed],” and (2) “[t]he fact that [the] plaintiff ha[d] sought to dismiss [the nondiverse] parties without prejudice . . . suggest[ed] that he intend[ed] to proceed with claims against [those] defendants in state court.” 1996 WL 498130, at *3.
Similarly here, Graham's ability to re-file a state court action against Terry Family Funeral Home (and potentially obtain inconsistent verdicts) cannot be avoided. Cf. FED. R. CIV. P. 41(a)(1)(A)(i) (providing that a “plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment”). Graham also cannot cure her deficient jurisdictional allegations in Graham III, necessitating dismissal without prejudice but without leave to refile in federal court and increasing the likelihood of Graham pursuing multiple actions involving essentially the same subject matter. Accordingly, Rule 19(b)'s second and third factors favor dismissal. See 7 Charles Alan Wright et al., supra, § 1608 (explaining that the third factor is “closely related to the . . . test for compulsory joinder set out in Rule 19(a)(1)(A)” and “promotes judicial economy by avoiding going forward with actions in which the court may end up rendering hollow or incomplete relief because of the inability to bind persons who could not be joined”); of. Takeda, 765 F.2d at 821 (reflecting that the Ninth Circuit stated that it “ha[d] already discussed potential prejudice and the possibility of inadequate relief, two of the Rule 19(b) factors, in the analysis above”).
Finally, Rule 19(b)'s fourth factor (adequacy of a remedy with dismissal) favors dismissal. “State court provides an adequate alternative forum[, because] [i]n state court, all the parties who should be joined, can be joined.” Takeda, 765 F.2d at 821; see also Cunningham, 1996 WL 498130, at *3 (“[The plaintiff] has a ready and available alternative forum for his allegations in state court. All of his claims could be fully and adequately addressed as against all named defendants. Thus, state court provides a more appropriate forum for the litigation of all related claims.”).
CONCLUSION
For the reasons stated and consistent with the Court's Graham I opinion and analysis, the Court recommends that the district judge DISMISS this case without prejudice to refiling in state court, and DENY AS MOOT Graham's motion for appointment of counsel (ECF No. 3).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.