Opinion
2:23-cv-00343-YY
07-03-2023
THOMAS EUGENE STEFANI, Plaintiff, v. DANIEL ALLEN LONGHORN and EDWARD ALFRED LONGHORN, SR., Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff has filed a Motion for Leave to File Second Amended Complaint. ECF 32. The motion should be denied because plaintiff still fails to establish subject matter jurisdiction.
In his proposed Second Amended Complaint, plaintiff alleges claims for “Amdtl. 7. 5. 6 True Threats, Amdtl.7.5.7 Defamation, Amdtl.7.5.9 False Statements Outside of Defamation.” Plaintiff appears to be referencing the Constitution Annotated published by Congress. See https://constitution.congress.gov/. The citations that plaintiff references are to the First Amendment. But defendants are private individuals, and “the first amendment has not been held to be a restraint on private conduct, only on state action.” Arnold v. Tiffany, 487 F.2d 216, 219 (9th Cir. 1973) (emphasis in original). Plaintiff's claim under the “Second Amendment Right to Bear Arms” similarly fails. See Allstate Ins. Co. v. Barnett, 2011 WL 2415383, at *2 (N.D. Cal. Jun.15, 2011) (observing “there does not appear to be any authority supporting [the] position that a claimed violation of the Second Amendment may be brought against a private actor”). Because plaintiff's has failed to establish that this court has subject matter jurisdiction, the case must be dismissed. FED. R. CIV. P. 12(H)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
https://constitution.congress.gov/browse/essay/amdt1-7-5-6/ALDE00013807/, https://constitution.congress.gov/browse/essay/amdt1-7-5-7/ALDE00013808/, https://constitution.congress.gov/browse/essay/amdt1-7-5-9/ALDE00013810/.
Furthermore, at this juncture, the case should be dismissed with prejudice. Plaintiff has had three opportunities to file a complaint that establishes this court's subject matter jurisdiction and has failed to do so. Moreover, it does not appear that he will ever be able to do so. Plaintiff's complaints stems from a dispute that he has with his uncle, defendant Edward Longhorn, Sr. over a deed signed by plaintiff's parents and which plaintiff believes his uncle forged or had forged. Am. Compl., Ex. 43, ECF 8 at 33. Plaintiff also names Daniel Longhorn, Edward Longhorn, Sr.'s son, as a defendant. Both defendants are private actors, and plaintiff has failed to establish this court's original jurisdiction over any claims against them, despite multiple attempts. See 28 U.S.C. § 1331. Additionally, all parties appear to be Oregon citizens; therefore, plaintiff cannot establish diversity jurisdiction. See U.S.C. § 1332. Where amendment would be futile, dismissal with prejudice is the appropriate remedy. See McZeal v. JPMorgan Chase Bank, N.A., 735 Fed.Appx. 913, 917 (9th Cir. 2018) (finding district court did not abuse its discretion in dismissing case with prejudice where there were “extensive deficiencies in the complaint” and the plaintiff failed to explain how he could cure them).
RECOMMENDATIONS
Plaintiff's Motion for Leave to File Second Amended Complaint (ECF 32) should be denied. Because plaintiff has failed to establish subject matter jurisdiction and amendment would be futile, this case should be dismissed with prejudice. All other pending motions should be denied as moot.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, July 21, 2023. If no objections are filed, then the Findings and Recommendations 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 Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.