Opinion
Case No. 3:18-cv-00888-AC
05-30-2019
WASHIE OUMA, Plaintiff, v. TYLER ASHER; DAVID H. LONG; LIBERTY MUTUAL INS. DBA SAFECO INS.; KATHERINE MORTON and KATHERINE MORTON LAW OFFICES, Defendants.
FINDINGS AND RECOMMENDATION :
Introduction
Plaintiff Washie Ouma ("Ouma") filed this lawsuit pro se against five defendants: Tyler Asher ("Asher"), David H. Long ("Long"), Liberty Mutual Insurance ("Liberty"), Katherine Morton ("Morton"), and the Katherine Morton Law Office ("Law Office") (collectively, "Defendants"). Before the court is Defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure ("Rules") 12(b)(2), 12(b)(5), and 12(b)(6). (Def.'s Mot. to Dismiss, ECF No. 13 ("Motion").) For the reasons set forth below, this action should be dismissed without prejudice for lack of jurisdiction, and Defendants' Motion should be DENIED as MOOT.
Background
On May 17, 2018, Ouma commenced this action by filing a court-supplied form complaint in United States District Court for the District of Oregon. (Compl., ECF No. 1 ("Compl.").) Though the Complaint is not easily decipherable, its allegations apparently stem from events surrounding a lawsuit adjudicated in Oregon state court to which Ouma was party. (Compl., Attach. 1 ("Statement"), at 2-3.) The case concerned a car accident involving Ouma. (Id.) The opposing party was the other driver represented by legal counsel retained by his insurer, Safeco Insurance Company ("Safeco"), which is ostensibly owned by Liberty Mutual Insurance Group. (Statement, at 1.) At trial, Safeco introduced into evidence emergency room records which presumably documented the injuries Ouma sustained in the accident. (Id. at 3.) The judgment subsequently entered by the state court was adverse to Ouma, who alleges the unfavorable state court judgment was reached in reliance on the emergency room records that were "intentionally forged/stole[n]" by an unidentified Safeco employee for use as evidence in that case. (Id. at 1-3.) Ouma claims Defendants have "re-victimized and re-harmed [him] and . . . have added an insult to some of the injuries caused . . . by their negligent insured driver." (Id. at 2.)
Ouma attached a typed statement of the case to the hand-written form complaint, but did not name, label, or otherwise identify it for reference. The court thus refers to Ouma's typed statement of the case as "Attach. 1."
The Complaint names Ouma, a resident of Oregon, as the sole plaintiff. (Compl., at 2.) Though five defendants are listed in the case caption, the Complaint names only Asher and Long, both residents of Massachusetts, and Morton, a resident of Oregon, in the space provided for "The Defendants." (Id. at 2-3.) As a basis for jurisdiction, Ouma checked both boxes on page 4 of the Complaint, indicating that both diversity and federal question jurisdiction apply in this case. With respect to diversity jurisdiction, Ouma names only Asher, reiterating Asher's Massachusetts address, and Liberty, which Ouma lists as being incorporated under the laws of Oregon with its principal place of business in Massachusetts. (Id. at 4-5.) As the basis for federal question jurisdiction, Ouma identifies a federal criminal statute — 18 U.S.C. § 1028 ("Section 1028") — which criminalizes "[f]raud and related activity in connection with identification documents, authentication features, and information." (Compl., at 4.) Ouma seeks money damages exceeding $5 million dollars. (Id. at 6.)
Legal Standard
Unlike state courts, federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, at 377 (1994). Thus, federal courts can hear only those types of cases authorized by Article III of the United States Constitution or by statute. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). "It is to be presumed that a cause lies outside this limited jurisdiction[.]" Kokkonen, 511 U.S. at 377 (internal citation omitted). "The objection that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y& H Corp., 546 U.S. 500, 506 (2006) (internal citations omitted). Accordingly, a federal court must dismiss those cases over which it lacks subject matter jurisdiction and may do so sua sponte. FED. R. CIV. P. 12(h)(3); Arbaugh, 546 U.S. at 514.
As the Ninth Circuit has instructed, however, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A complaint filed pro se "'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). A pro se litigant will be given leave to amend his or her complaint unless it is clear that the deficiencies of the complaint cannot be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).
Discussion
Congress has divided a district court's subject matter jurisdiction under Article III into three categories: (1) federal question jurisdiction — those cases arising under the Constitution, laws, or treaties of the United States, pursuant to 28 U.S.C. § 1331 ("Section 1331"); (2) diversity jurisdiction — cases involving citizens of diverse states, pursuant to 28 U.S.C. § 1332 ("Section 1332"); and (3) cases of admiralty law under 28 U.S.C. § 1333. The presence or absence of federal question jurisdiction "is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar v. Williams, 482 U.S. 386, 392 (1987). Alternatively, whether diversity jurisdiction exists is dependent on the following requirements: (1) the amount in controversy must exceed $75,000, exclusive of interests and costs, and (2) there must be complete diversity of citizenship among the parties. 28 U.S.C. § 1332(a). More simply, if any defendant is a citizen of the same state as the plaintiff, diversity is destroyed and the court lacks jurisdiction unless a federal question applies. Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001).
Defendants' Motion does not challenge the existence of subject matter jurisdiction in this case. Nevertheless, this court has an independent obligation to confirm it has the power to decide the controversy before it. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) Because Ouma claims both federal question and diversity jurisdiction apply, the court analyzes each in turn. I. Federal Question Jurisdiction
To demonstrate federal question jurisdiction applies, the form complaint provided to Ouma prompts the plaintiff to "[l]ist the specific statutes, federal treaties, and/or provisions of the United States Constitution that are at issue in this case." (Compl., at 4.) In the space provided, Ouma indicated the statutory predicate on which the Complaint rests is "18 US Code # 1028 Fraud, and related activity in connection with ID theft, deception, business corruption, abuse of power, et cetera." (Id.) Ouma alleges the "unlawful acts, crimes, id theft, forgery, frauds, [and] deceptions" perpetrated by Defendants "are crimes and offences" under Section 1028, and "therefore they must be held accountable and severely sanctioned and punished." (Statement, at 6.)
Though the court agrees various frauds and forgeries with respect to identification documents are crimes under Section 1028, federal criminal statutes "do not generally create a private right of action in a plaintiff or provide a basis for civil liability. Schulstrom v. Schulstrom, No. 3:14-cv-00791-SI, 2014 WL 3479018, at *3 (D. Or. July 11, 2014); see also, e.g.,Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980) (stating criminal statutes 18 U.S.C. §§ 241, 242 provide no private cause of action nor basis for civil liability). Indeed, Section 1028 — the lone federal statute on which the Complaint relies — contains no provision providing for a private cause of action, and there is no indication from the statutory text that a private cause of action is implied. Furthermore, insofar as Ouma attempts to hold Defendants accountable for crimes allegedly committed against him, "a federal criminal law [can] be enforced only by a federal prosecutor, not by any private party." Sulla v. Horowitz, Civil No. 12-00449 SOM/KSC, 2012 WL 4758163, at *3 (D. Haw. Oct. 4, 2012).
Because the Complaint seeks enforcement of a federal criminal statute that does not provide a private cause of action, the court lacks a viable basis for subject matter jurisdiction by way of federal question. See, e.g., Williams v. United Airlines, Inc., 500 F.3d 1019, 1022 (9th Cir. 2007) (finding federal question jurisdiction applicable "only when the plaintiff sues under a federal statute that creates a right of action in federal court" (citations omitted)). Accordingly, Ouma's complaint must be dismissed unless diversity jurisdiction applies. II. Diversity Jurisdiction
Ouma contends this court has diversity jurisdiction over this case. (Compl., at 4.) In the space provided to explain the basis for diversity jurisdiction, Ouma names himself as plaintiff, a citizen of Oregon, and names Asher as a citizen of Massachusetts. (Id. at 4.) He also names Liberty as a corporation incorporated under the laws of the State of Oregon with its principal place of business in Massachusetts. (Id. at 5.). Though not listed with respect to diversity jurisdiction, the mailing addresses of the additional defendants are included on a typed page attached to the Complaint. The mailing address for Long is in Massachusetts, and the same Portland, Oregon mailing address is listed for both Katherine Morton and the Law Offices of Katherine Morton.
The typed page containing the mailing address of each individual party to this litigation is has no page number or other identifier to help locate it in the record. The court notes that it can be found immediately following the typed statement of the case attached to the Complaint. --------
A federal court cannot exercise diversity jurisdiction unless there is complete diversity between the parties and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). For the purposes of diversity, an individual is "citizen" of the state in which he or she resides and intends to remain, and a corporation is a citizen of every state by which it has been incorporated and of the state in which it has its principle place of business. 28 U.S.C. § 1332(c). "[T]he existence of diversity jurisdiction must be sufficient on the face of the complaint," Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.32d 1187, 1190 (9th Cir. 1970).
Here, diversity jurisdiction is not apparent on the face of the Complaint. Ouma indicates he lives in Portland, Oregon, but also alleges Katherine Morton resides in Oregon, the Law Offices of Katherine Morton are located in Oregon, and Liberty was incorporated under the laws of Oregon. Complete diversity therefore does not exist between the parties. Additionally, the Complaint asserts an amount in controversy well over $75,000, but Ouma's claim is predicated on a criminal statute that cannot serve as a basis for a civil suit to recover damages from Defendants. Furthermore, the compensatory damages listed in the Complaint — "past economic damages losses, physical [and] emotional injuries, medical [and] health expenses" — apparently stem from injuries sustained in the car accident and were already denied by the state court. Such damages would not be recoverable even if Ouma's claim stated a legitimate cause of action. Thus, to a legal certainty, the amount in controversy is not met.
Because the parties are not diverse and the amount in controversy is not met, diversity jurisdiction is not a viable basis for the court's subject matter jurisdiction in this case. Thus, the complaint should be dismissed in its entirety. II. Leave to Amend
The court is mindful that "[u]nless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); Obeng-Amponsah v. Don Miguel Apartments, 744 F. App'x 476, 477 (9th Cir. 2018). Here, Ouma's claims stemming from Section 1028 should be dismissed with prejudice because such claims cannot be cured. However, Ouma should still be given leave to file an Amended Complaint so he may attempt to state a valid federal cause of action. If Ouma chooses to file an amended complaint, he should be cautioned that he must properly identify the basis for the court's subject matter jurisdiction and allege specific facts in support of his claims. Further, he should be advised that failure to cure the deficiencies will result in dismissal of this action.
Conclusion
Because this court lacks subject matter jurisdiction over the instant dispute, the Complaint should be DISMISSED and Defendants' Motion to Dismiss (ECF No. 13) should be DENIED as MOOT.
Scheduling Order
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due June 13, 2019. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 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.
DATED this 30th day of May, 2019.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge