Opinion
21-cv-07548-JSC
12-08-2021
ROBERT LINDBLAD, Plaintiff, v. HAN LIN AUCTION GALLERY, et al., Defendants.
ORDER OF REASSIGNMENT AND REPORT AND RECOMMENDATION TO DISMISS
RE: DKT. NO. 12
JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE
The Court previously granted Plaintiff's application to proceed in forma pauperis and, upon review of the complaint pursuant to 28 U.S.C. § 1915, gave Plaintiff the opportunity to amend. (Dkt. Nos. 4, 9.) The Court now reviews Plaintiff's amended complaint pursuant to 28 U.S.C. § 1915. (Dkt. No. 12.)
Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.
Because the parties have not consented to the Court's jurisdiction, the Clerk of Court is ordered to REASSIGN this action to a district court judge. See Williams v. King, 875 F.3d 500, 501, 504 (9th Cir. 2017) (magistrate judge lacked jurisdiction to dismiss case on initial screening because unserved defendants had not consented to proceed before magistrate judge). The Court RECOMMENDS that the district court judge dismiss the action without prejudice for lack of jurisdiction. The amended complaint does not establish a basis for federal subject matter jurisdiction. Although it makes a wide variety of allegations, the amended complaint appears to concern real property located in Millbrae and Berkeley, California. (Dkt. No. 12 at 1, 9-10.) Plaintiff cites a list of federal statutes, (id. at 8), but does not explain how “federal law creates the cause of action or [how Plaintiff's] right to relief necessarily depends on resolution of a substantial question of federal law.” Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1219 (9th Cir. 2009) (citations omitted); see also 28 U.S.C. § 1331. While the complaint pleads an amount in controversy that exceeds the amount required for diversity jurisdiction, (Dkt. No. 12 at 9-10), it does not indicate complete diversity of citizenship between the parties. See 28 U.S.C. § 1332(a)(1). All parties are residents of California, (Dkt. No. 12 at 10-11), thus defeating the complete diversity of citizenship required for the Court to exercise diversity jurisdiction.
Accordingly, because there is no basis for federal subject matter jurisdiction, the Court RECOMMENDS that the district court judge dismiss this action without prejudice for lack of jurisdiction. The Court further RECOMMENDS:
• Plaintiffs motion to amend/correct, (Dkt. No. 5), be denied as moot; and
• Plaintiffs request and motion for Rule 65 injunction, (Dkt. Nos. 10, 11), be denied as the Court lacks subject matter jurisdiction of this action; in addition, the motion is duplicative of his identical unsuccessful motion in Lindblad v. Westmore, No. 3:21-cv-07814-EMC, Dkt. Nos. 20, 21.
Any party may file objections to this report and recommendation with the district court judge within fourteen days after being served with a copy. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); N.D. Cal. Civ. L.R. 72-3. Failure to file objections within the specified time may waive the right to appeal the district court's ultimate order.
IT IS SO RECOMMENDED.