Opinion
No. C 02-053 52 CRB
February 25, 2003
ORDER OF DISMISSAL
Plaintiff has filed in this Court a complaint seeking monetary damages and injunctive relief against defendant, publisher of The Independent. On January 7, 2003, the Court issued an order to show cause why the case should not be dismissed for lack of subject matter jurisdiction. Plaintiff responded to that order on January 22, 2003. Because plaintiff has not demonstrated that this Court has subject matter jurisdiction over her claims, the case will be dismissed.
On January 23, 2003, the Court granted plaintiff's motion for an extension of time to file her response to the order to show cause. However, plaintiff filed nothing additional prior to the expiration of the extension on February 24, 2003.
Defamation is a matter of state law. See Cal. Civ. Code § 44 et seq. Defendants' alleged deprivation of plaintiff's rights and property interests was not accomplished under color of state law, nor did defendants conspire with any state actor to accomplish such deprivation. As such, jurisdiction does not lie under 42 U.S.C. § 1983 or 28 U.S.C. § 1343. The cases cited by plaintiff, all of which involved state action, are not to the contrary. See Paul v. Davis, 424 U.S. 693, 711 (1976) (noting that "the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter" one's liberty or property interests protected by the Due Process Clause); Briley v. State of California, 564 F.2d 849, 858 (9th Cir. 1977) (section 1983 claim may be brought against a private actor if "it is established that they have acted in concert with another party against whom a valid [section 1983] claim can be stated").
Plaintiff also asserts that jurisdiction is proper under 42 U.S.C. § 12101. That statute does not confer jurisdiction. Even if it did, plaintiff does not allege that defendants discriminated against her on the basis of any legally cognizable disability.
Since plaintiff has not stated any federal claim, plaintiff's request that the Court exercise pendent jurisdiction over her state-law claims pursuant to 28 U.S.C. § 1367 must be rejected.
"Even if no party questions the court's subject matter jurisdiction, the court is under a duty to raise it sua sponte." Rudow v. Monsanto Co., 2001 WL 228163, at *2 (N.D. Cal. 2001) (citing Harris v. Provident Life Accident Ins. Co., 26 F.3d 930, 931 (9th Cir. 1994)); see also Fed.R.Civ.P. 12(h)(3). Pursuant to this duty, the complaint in this case is hereby DISMISSED.