Opinion
2:22-cv-02117-GMN-NJK
01-27-2023
LISANDRO QUINTANILLA, Plaintiff(s), v. GOLDEN ENTERTAINMENT, et al., Defendant(s).
REPORT AND RECOMMENDATION
NANCY J. KOPPE, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is an order for Plaintiff to show cause why this case should not be dismissed for lack of subject matter jurisdiction. Docket No. 2. The response was due on January 24, 2023, see id. at 2, but none has been filed.
The Court has a duty to ensure that it has subject matter jurisdiction over the dispute before it, an issue it may raise at any time during the proceedings. See, e.g., Fed.R.Civ.P. 12(h)(3). Federal courts are courts of limited jurisdiction and possess only that power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). “The party asserting federal jurisdiction bears the burden of proving that the case is properly in federal court.” McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
Plaintiff's complaint invokes federal question jurisdiction. Docket No. 1-1 at 3. The only claim that appears to be raised alleges wrongful termination based on Plaintiff disputing the basis on which the employment termination was predicated. Id. at 4-5. In particular, the claim is predicated on the allegation that Plaintiff “was accused of stealing a speaker that [Plaintiff] did not touch” and was thereafter fired. Id. at 5; see also id. at 7. The complaint leaves blank the section requiring the identification of a federal statute under which the claim is brought, and the complaint does not otherwise include factual allegations from which a federal claim can be construed. Hence, the complaint on its face does not provide any indication that subject matter jurisdiction exists in this matter. Moreover, as noted above, Plaintiff did not respond to the order to show cause to provide any basis for the Court to exercise jurisdiction.
As Plaintiff is proceeding without an attorney, the papers are construed liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Accordingly, the undersigned RECOMMENDS that the complaint be DISMISSED without prejudice to its refiling in an appropriate venue.
NOTICE
This report and recommendation is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation must file a written objection supported by points and authorities within fourteen days of being served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).