Opinion
Civil No. 03-1541-JE
April 30, 2004
Daniel W. Dickerson, Michael Wise Associates Portland, OR, Attorney for Plaintiff.
Hollis K. McMilan, Peter C. McKittrick, Kimberley Hanks McGair, Farleigh Wada Witt PC, Portland, OR, Attorneys for Pacific Western Mortgage Investment.
Celia A. Howes, Keith S. Dubanevich, Garvey Schubert Barer, Portland, OR, Attorney for Defendant Pacific Western Realty, California Oswego Limited Investors, Portland Lawnfield Limited Investors, and Jim Walls.
Anne E. Denecke, Davis Wright Tremaine, LLP, Portland, OR, Attorney for Pierre Zreik.
FINDINGS AND RECOMMENDATION
Plaintiff, Mark Byrum, brings various state law claims in this action against two individuals and six business entities. For the reasons set out below, I recommend dismissing the case in its entirety for lack of subject matter jurisdiction.
PROCEDURAL BACKGROUND
On November 12, 2003, plaintiff filed a complaint asserting state law claims of slander, intentional interference with a contractual relationship, intentional interference with a business relationship, and intentional interference with prospective economic advantage. Plaintiff named two individuals, Jim Walls and Pierre Zreik, and Pacific Western Mortgage and Investment Company ("Pacific Western Mortgage"), Pacific Western Realty and Development Company, California Oswego Limited Investors, PW3 Incorporated, Portland Lawnfield Limited Investors, and Waterford Hotels and Inns.
Pacific Western Mortgage filed a motion captioned "Notice of Removal to Bankruptcy Court or, in the alternative, Motion for Referral to the Bankruptcy Court." Pacific Western Mortgage also added a reference to an apparently pending bankruptcy proceeding, "In re Avalon Hotel Partners, Inc.," in its caption. Plaintiff responded by filing a motion to "Nullify Defendants' Removal to Bankruptcy Court or, in the alternative, Motion for Referral to the Bankruptcy Court." Plaintiff also filed a motion to dismiss all six of the business entities on the grounds that they are "non-essential" defendants.
Because this court lacks subject matter jurisdiction, I recommend dismissing this action without reaching the merits of the pending motions.
DISCUSSION
Federal Rule of Civil Procedure 8(a) requires that a pleading contain "a short and plain statement of the grounds upon which the court's jurisdiction depends. . . ." Although his complaint includes a heading entitled "Jurisdiction," plaintiff cites no statutory basis for the court's jurisdiction. Plaintiff's reference to the residence or principal place of business of most of the defendants and his assertion that the amount in controversy exceeds $75,000 implies that he premises this court's jurisdiction on diversity of citizenship. The absence of any federal claims or reference to federal question jurisdiction and the existence of state law claims for slander and intentional interference also support the inference that plaintiff bases jurisdiction on diversity.
In order for this court to assert diversity jurisdiction under 28 U.S.C. § 1332, a civil action must be between "citizens of different States." Diversity jurisdiction does not exist unless each defendant is a citizen of a different state than each plaintiff. Valot v. English, 54 F.3d 786, 786 (9th Cir. 1995);citing Owen Equip. and Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978) (citation omitted).
Plaintiff alleges that "at all relevant times" he was a resident of Oregon. While he alleges that the six business defendants have their principal place of business in California, plaintiff does not allege the citizenship of defendant Walls. More importantly, plaintiff alleges that defendant Zreik "at all relevant times . . . was a resident of Oregon." The return of service for Zreik filed with this court indicates that this defendant was served at "0455 Hamilton Ct., Portland, OR 972201 [sic]. . . ."
Plaintiff's complaint and this return of service support only the inference that Zreik is a citizen of Oregon. Because both the plaintiff and defendant Zreik are citizens of the State of Oregon, diversity is not complete and this court lacks jurisdiction over this matter under 28 U.S.C. § 1332.
This court has the authority to dismiss this case sua sponte for lack of subject-matter jurisdiction. See, e.g., Scholastic Entertainment v. Fox Entertainment Group, Inc., 336 F.3d 982, 985 (9th Cir. 2003); citing, California Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 1974) (Court has authority to dismiss sua sponte for lack of subject matter jurisdiction).
Though this court's lack of jurisdiction renders all pending motions moot, I note that defendants' "Notice of Removal to Bankruptcy Court or, in the alternative, Motion for Referral to Bankruptcy Court" would fail even if this court had jurisdiction. In Mitchell v. Fukuoka Daiei Hawks Baseball Club, 206 B.R. 204, 210 (C.D. Cal 1997), the Bankruptcy Court held that the bankruptcy removal statute, 28 U.S.C. § 1452, does not allow for removal from a District Court to a Bankruptcy Court. I agree that the proper procedure to transfer a case from the District Court to the Bankruptcy Court is a referral. However, defendants' alternate request for "referral" to the Bankruptcy Court is inapposite because under 28 U.S.C. § 157(b)(5) "the district court shall order that personal injury tort . . . claims shall be tried in the district court in which the bankruptcy case is pending. . . ." (emphasis added). Plaintiff's complaint asserts only personal injury claims, which accordingly are not appropriate for resolution in bankruptcy proceedings.
CONCLUSION
Because this court lacks subject matter jurisdiction, I recommend that this action be dismissed. The parties' pending motions (#9, #10) should be dismissed as moot.SCHEDULING ORDER
The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, are due May 18, 2004. If no objections are filed, the Findings and Recommendation will go under advisement on that date.
A party may respond to another party's objections within 10 days after service of a copy of the objection. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response, or the latest date for filing a response.