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Penrose v. Fritsch

United States District Court, D. Nevada

October 10, 2014

HERBERT S. PENROSE, Plaintiff,
v.
SCOTT FRITSCH, Defendant.

ORDER (MOTION TO DISMISS - DKT. NO. 5; MOTION FOR PRELIMINARY INJUNCTION - DKT. NO. 12; MOTION TO EXPUNGE LIS PENDENS - DKT. NO. 15)

MIRANDA M. DU, District Judge.

I. SUMMARY

Before the Court are the following motions: (1) Defendant Scott Fritsch's ("Defendant") Motion to Dismiss (dkt. no. 5); (2) Plaintiff Herbert S. Penrose's ("Plaintiff") Motion for Permanent Injunction (dkt. no. 12); and (3) Defendant's Motion to Expunge Lis Pendens (dkt. no. 15). For the reasons set out below, the Motion to Dismiss is granted, the Motion for Permanent Injunction is denied, and the Motion to Expunge Lis Pendens is granted.

II. BACKGROUND

On May 29, 2014, Plaintiff initiated this action by filing a Motion for Judicial Review ("Motion"). (Dkt. no 1.) Plaintiff's Motion arises from litigation he filed in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe ("State Court") over a parcel of real property ("the Property"). (Dkt. no. 1 at 1-2.) That case concluded two years earlier when, on May 29, 2012, the State Court entered an Order of Judicial Foreclosure ("Order") that "foreclosed and extinguished in its entirety" Plaintiff's interest in the Property. (Exh. 1, dkt. no. 1 at 11-13.) Plaintiff did not appeal the State Court judgment to the Nevada Supreme Court. (Dkt. no. 5 at 3.)

Defendant moves to dismiss the Motion under Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiff has not properly pled a basis for subject matter jurisdiction and that the Rooker-Feldman doctrine deprives the Court of subject matter jurisdiction. The Court notes that Plaintiff failed to respond to the jurisdictional issues raised by Defendant in the Motion to Dismiss.[1] While the Motion to Dismiss was pending, Plaintiff filed a Motion for a Permanent Injunction (dkt. no. 12) and a Notice of Lis Pendens (dkt. no. 13). Defendant filed a timely response in opposition to the Motion for a Permanent Injunction (dkt. no. 14) and filed a Motion to Expunge Lis Pendens (dkt. no. 15).

III. DISCUSSION

Defendant's Motion to Dismiss raises threshold issues of subject matter jurisdiction. As resolution of these issues will have an effect on the pendency of the litigation, the Court will address Defendant's Motion to Dismiss first.

A. Rule 12(b)(1) Legal Standard

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to seek dismissal of a claim or action for lack of subject matter jurisdiction. Dismissal under Rule 12(b)(1) is appropriate if the complaint, considered in its entirety, fails to allege facts on its face that are sufficient to establish subject matter jurisdiction. In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008). Although the defendant is the moving party in a motion to dismiss brought under Rule 12(b)(1), the plaintiff is the party invoking the court's jurisdiction. As a result, the plaintiff bears the burden of proving that the case is properly in federal court. See In re Ford Motor Co./Citibank (S.D.), N.A., 264 F.3d 952, 957 (9th Cir. 2001) ( citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).

Pursuant to Rule 12(b)(1), a defendant may assert that the Rooker-Feldman doctrine deprives a federal district court of subject matter jurisdiction. See, e.g., Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 858 (9th Cir. 2008); Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003). State court litigants may only achieve federal review of state court judgments by filing a petition for a writ of certiorari in the Supreme Court of the United States. Feldman, 460 U.S. at 482.

1. Sufficiency of Pleading

Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Original jurisdiction must be based either on diversity of citizenship under 28 U.S.C. §1332, or on a claim involving the Constitution, laws, or treaties of the United States pursuant to 28 U.S.C. §1331. Every pleading filed in federal court must contain "a short and plain statement of the grounds for the court's jurisdiction...." Fed.R.Civ.P. 8(a)(1); see also LR 8-1. Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).

Plaintiff's Motion, even when viewed under a less stringent standard, does not comply with the pleading requirements of Rule 8(a)(1). The pleading does not contain any statement or factual support to establish a basis for the Court to exercise subject matter jurisdiction over the claim.[2] Thus, pursuant to Rule 12(b)(1), Plaintiff has failed to meet his burden of proving the claim is properly in federal court. Although the Court recognizes that this action would normally be dismissed without prejudice to give Plaintiff an opportunity to correct the pleading, the Court ...


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