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Case 2:13-cv-01946-GEB-AC Document 6 Filed 09/20/13 Page 1 of 3







UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

UPENDRA SINGH,

No. 2:13-cv-01946-GEB-AC

Plaintiff,



v.

WELLS FARGO BANK, N.A.,

Defendant.

ORDER DENYING APPLICATION FOR
TEMPORARY RESTRAINING ORDER AND
DISMISSING COMPLAINT FOR LACK OF
SUBJECT MATTER JURSIDICTION

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Plaintiff moves ex parte for a temporary restraining

order preventing Defendant “from conducting any non-judicial

foreclosure sale or taking any other action which reasonably

could deprive [Plaintiff] of title in his family’s home at 9328

Feather Falls Court, Elk Grove, California 95624.” (Pl.’s TRO

5:3-7, ECF No. 5.) However, Plaintiff has not shown that the

federal court has subject matter jurisdiction over this action.



“Federal courts are courts of limited jurisdiction.

They possess only that power authorized by Constitution and

statute . . . . It is to be presumed that a cause lies outside

this limited jurisdiction, and the burden of establishing the

contrary rests upon the party asserting jurisdiction.” Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

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(citations omitted).

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“[A] district court’s duty to establish subject matter

jurisdiction is not contingent upon the parties’ arguments. . . .






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Case 2:13-cv-01946-GEB-AC Document 6 Filed 09/20/13 Page 2 of 3

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[A] district court ha[s] a duty to establish subject matter

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jurisdiction . . . sua sponte, whether the parties raised the

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issue or not.” United Investors Life Ins. Co. v. Waddell & Reed

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Inc., 360 F.3d 960, 966-67 (9th Cir. 2004); see also Fed. R. Civ.

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P. 12(h)(3) (“If the court determines at any time that it lacks

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subject-matter jurisdiction, the court must dismiss the

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action.”).

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Plaintiff

alleges

in



the

Complaint

that

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“[j]urisdiction [is] . . . proper because the parties are

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completely diverse.” (Compl. ¶ 2, ECF No. 1.) However, Plaintiff

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alleges neither the citizenship of the parties, nor that the

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amount in controversy exceeds $75,000. See 28 U.S.C. § 1332.

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“[Plaintiff] has the burden of alleging the essential elements of

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diversity jurisdiction in his complaint[,]” including the diverse

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citizenship of all parties. Redford v. Iron Planet Inc., No. 11-

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cv-04145 NC, 2012 WL 1569819, at *3 (N.D. Cal. May 3, 2012)

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(citing Bautista v. Pan Am. World Airlines, Inc., 828 F.2d 546,

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(9th Cir. 1987)); see also Thomas v. Bd. of Trs. of Ohio State

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Univ., 195 U.S. 207, 210 (1904) (stating “when jurisdiction

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depends upon diverse citizenship[,] the absence of sufficient

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averments . . . showing such required diversity of citizenship is

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fatal and cannot be overlooked by the court”).

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Since Plaintiff has not established that the Court has

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subject matter jurisdiction over this action, the action is

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dismissed without prejudice. See Redford, 2012 WL 1569819, at *4

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(dismissing action without prejudice when the plaintiff failed to

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allege his citizenship and the amount in controversy); accord

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Tschakert v. Hart Energy Publ’g, LLLP, No. 10cv2598-L(WMC), 2011






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Case 2:13-cv-01946-GEB-AC Document 6 Filed 09/20/13 Page 3 of 3

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WL 52598, at *2 (S.D. Cal. Jan. 6, 2011). Plaintiff is granted

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ten (10) days from the date on which this order is filed to file

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an amended complaint addressing the jurisdictional allegations.

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If Plaintiff fails to timely file an amended complaint, this

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action shall be closed without further order of the Court.

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Further, Plaintiff’s motion for a temporary restraining

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order is denied, since “[i]n the absence of a complaint setting

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out the basis for jurisdiction, the court lacks the jurisdiction

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to grant a temporary restraining order.” Camillos v. US Bank

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Nat’l Ass’n, No. 5:11-CV-05228 EJD, 2011 WL 5122619, at *2 (N.D.

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Cal. Oct. 27, 2011).

Dated: September 20, 2013







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