Free Order to Show Cause - District Court of California - California

Case 3:07-cv-02170-LAB-LSP

Document 32

Filed 08/01/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On June 18, 2008, the Court dismissed Plaintiff's claims against the City of San Diego without prejudice and ordered him to obtain leave to amend before filing an amended complaint. On July 2, 2008, Plaintiff filed a motion to file an amended complaint, which the Court denied without prejudice. Plaintiff then submitted a second motion to file an amended complaint ("Second Motion to Amend") which was filed nunc pro tunc to July 15, 2008. Federal Rule of Civil Procedure 15(a) imparts the Court with the discretion to freely grant a party leave to amend when "justice so requires." Fed. R. Civ. P. 15(a). Granting leave to amend is subject to the qualification that the amendment is not futile. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Plaintiff's Second Motion to Amend characterizes his claim as arising under the Fourth Amendment. (Second Motion to Amend at 1:23.) He argues the fees imposed were -1CITY OF SAN DIEGO, et al., Defendants. vs. MARK DARULIS, Plaintiff, CASE NO. 07cv2170-LAB (LSP) ORDER DENYING MOTION TO FILE AMENDED COMPLAINT; AND ORDER DISMISSING CLAIMS WITH PREJUDICE; AND ORDER TO SHOW CAUSE RE: JURISDICTION

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

07cv2170

Case 3:07-cv-02170-LAB-LSP

Document 32

Filed 08/01/2008

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not authorized by state law, and therefore, "probable cause" to seize his vehicle did not exist. (Id. at 2:1­9.) This is in fact a dispute about the meaning and application of state law and therefore not a Fourth Amendment claim. (See Order of June 18, 2008 at 6:12­16.) There is no basis for this Court's exercise of jurisdiction over this claim. Because further amendments would be futile, the Second Motion to Amend is DENIED and the Court finds it proper to DISMISS the claims against the City of San Diego with PREJUDICE. The only remaining claims are against Defendant C&D Towing Specialists, Inc. ("C&D") arising from towing and storage fees Plaintiff alleges are not authorized under state law. Because it appears Plaintiff's claims against C&D arise under state law and because the Complaint gives no other basis for this Court's exercise of jurisdiction, it appears the Court lacks jurisdiction to hear these claims. The Court is under a continuing obligation to examine its own jurisdiction, even sua sponte if necessary. B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). Plaintiff is therefore ORDERED TO SHOW CAUSE why his remaining claims should not be dismissed for lack of jurisdiction. He may do so by filing a memorandum of points and authorities, no longer than seven pages, not counting any lodged or appended material, no later than 28 calendar days from the date this order is issued. Should he fail to show cause as ordered within the time permitted, this action may be dismissed without prejudice without further notice to him. IT IS SO ORDERED. DATED: July 31, 2008

HONORABLE LARRY ALAN BURNS United States District Judge

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07cv2170