Booth v. Kane

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 TAMMY MAE BOOTH, Case No.: 20cv2543-GPC(KSC) 12 Plaintiff, ORDER DISMISSING CASE WITH 13 v. LEAVE TO AMEND AND DENYING MOTION TO SET ASIDE DEFAULT 14 JOY CHRISTINE KANE, MARIKA RAI AS MOOT BARBER, JOHN H GITLIN, JOHN [15] GITLIN, JOSEPH C. FARAH, [DKT. NO. 5.] 16 PROMISE PROPERTY MANAGEMENT, REAL PROPERTY [17] MANAGEMENT WINCHESTER, SURF 18 AND SEA PROPERTIES, SURF & SEA PROPERTIES INC, REAL PROPERTY [19] MANAGEMENT SAN DIEGO 20 SHORES, MR. MARK D. FEINBERG, MS. JEAN MARJORIE HEINZ, MR. [21] MARK DAVID FEINBERG, [22] Defendants. [24] On September 2, 2020, a miscellaneous case was opened when Plaintiff Tammy [25] Mae Booth filed a document and paid a filing fee of $47.00 in Case No. 20mc980. [26] Plaintiff’s filed document is entitled, “Unrebutted Administrative Affidavit of Specific [27] Negative Averment” but does not indicate what she is seeking administratively from the [28] 1 Clerk’s Office. (Dkt. No. 1.) On November 9, 2020, Plaintiff filed a request for entry of 2 default. (Dkt. No. 2.) On December 17, 2020, the Clerk entered default against all 3 defendants. (Dkt. No. 4.) On February 5, 2021, Defendants Mark D. Feinberg and Jean 4 M. Heinz filed a motion to set aside default. (Dkt. No. 5.) Because the matter became 5 contested, on February 9, 2021, this case was opened as a civil matter and assigned to the 6 undersigned judge. 7 It is not clear whether Plaintiff seeks to commence a civil action. See Fed. R. Civ. 8 P. 3 (“A civil action is commenced by filing a complaint with the court.”). No complaint 9 has been filed and Plaintiff’s document does not comply with the form of filing a 10 complaint under Civil Local Rule 5.1. Moreover, if Plaintiff seeks to proceed in this civil 11 matter, she must pay $4021 to the Court’s registry instead of the $47.00 she paid for filing 12 a miscellaneous case. 13 Further, “[f]ederal courts are courts of limited jurisdiction.” Kokkonen v. 14 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a 15 cause lies outside this limited jurisdiction, and the burden of establishing the contrary 16 rests upon the party asserting jurisdiction.” Id. Federal subject matter jurisdiction may 17 be based on (1) federal question jurisdiction under 28 U.S.C. § 1331 or (2) diversity 18 jurisdiction under 28 U.S.C. § 1332 . The complaint must establish either that federal law 19 creates the cause of action or that the plaintiff's right to relief necessarily depends on the 20 resolution of substantial questions of federal law. Franchise Tax Board of Cal. v. 21 Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1 , 10–11 (1983). 22 Alternatively, a federal court may have diversity jurisdiction over an action involving 23 citizens of different states where the amount in controversy exceeds $ 75,000. 28 U.S.C. 24 § 1332. “The essential elements of diversity jurisdiction, including the diverse residence [28] 1 of all parties, must be affirmatively alleged in the pleadings.” Bautista v. Pan Am. World 2 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). 3 Next, under Federal Rule of Civil Procedure (“Rule”) 8, a pleading must contain “a 4 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 5 R. Civ. P. 8(a)(2). While a plaintiff need not give “detailed factual allegations,” a 6 plaintiff must plead sufficient facts that, if true, “raise a right to relief above the 7 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). To state a 8 claim upon which relief may be granted “a complaint must contain sufficient factual 9 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 10 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547 ). A claim is 11 facially plausible when the factual allegations permit “the court to draw the reasonable 12 inference that the defendant is liable for the misconduct alleged.” Id. 13 Finally, service of the summons and complaint must be made pursuant to Rule 4 on 14 all defendants before they are required to respond. Fed. R. Civ. P. 12(a)(1)(A) (“A 15 defendant must serve an answer . . . within 21 days after being served with the summons 16 and complaint”). Here, even though the initial filing was not a complaint, there is no 17 indication that the defendants were served with the initial filing.2 Moreover, defendants 18 were not served with both the summons and the complaint as required by Rule 4(c)(1) 19 (“A summons must be served with a copy of the complaint.”). Therefore, because 20 defendants were not served with a complaint and summons, default against the 21 defendants was entered in error. 22 Accordingly, due to the discrepancies noted above, the Court DISMISSES the case 23 with leave to amend. Because this case has been opened as a civil case, in order to 24 proceed, Plaintiff must comply with the Federal Rules of Civil Procedure and Local Civil 25 Rule for the prosecution of her case. As a starting matter, she must pay $355, the [27] 2 The Court also notes that Plaintiff’s proof of service only indicates service of the request for entry of [28] 1 remainder of the $402 filing fee, to the Court’s registry, file a complaint in accordance 2 || with Civil Local Rule 5.1 and Rule 8 and must establish a basis for the Court’s federal 3 || subject matter jurisdiction. See Riddle v. IRS, No. CV-04—415-ST, 2004 WL 902351 , at 4 ||*2 (D. Or. Apr. 2, 2004). Plaintiff is granted leave to file a complaint and pay the 5 remainder of the filing fee on or before March 26, 2021. Because entry of default was 6 || filed in error, the Clerk of Court shall strike the entry of default entered on December 17, 7 2000, (Dkt. No. 4), and DENIES Defendants Mark D. Feinberg and Jean M. Heinz’ 8 || motion to set aside default as moot. 9 IT IS SO ORDERED. 10 || Dated: March 2, 2021 =< 12 United States District Judge