Olivera Hernandez v. McAleenan
- Proceeding
- district
- Area
- civil
- Panel
- Larry Alan Burns (author)
Analysis
Defendants moved to dismiss the action for lack of subject matter jurisdiction, and the plaintiff failed to file an opposition as required by local rules. The court construed the non-opposition as consent to the motion and dismissed the case without prejudice but without leave to amend.
| What the court decided | The model |
|---|---|
Motion to dismiss for lack of subject matter jurisdiction granted“This action is DISMISSED WITHOUT PREJUDICE BUT WITHOUT LEAVE AMEND, for lack of subject matter jurisdiction.” | agree with court The court correctly applied the principle that the party invoking jurisdiction bears the burden of establishing it. By failing to oppose the motion as required by Civil Local Rule 7.1(e)(2), the plaintiff effectively conceded the jurisdictional defect. The dismissal without prejudice is appropriate for a jurisdictional failure, and the denial of leave to amend is consistent with the finding that the plaintiff did not meet her burden after the jurisdiction was challenged. |
The order itself: sound — The order is procedurally sound. It correctly identifies the local rule requirement for opposition, applies the standard burden of proof for jurisdiction, and cites the correct Supreme Court authority for that burden. The result follows logically from the plaintiff's failure to respond to the jurisdictional challenge.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NORA DE JESUS OLIVERA Case No.: 20cv440-LAB (JLB) HERNANDEZ 12 ORDER OF DISMISSAL Plaintiff, 13 v. 14 KEVIN MCALEENAN, et al. 15 Defendants. 16 17 18 Defendants filed a motion to dismiss for lack of jurisdiction, with a hearing 19 date of January 19, 2021. Plaintiff, who is represented by counsel, has filed no 20 opposition as required by Civil Local Rule 7.1(e)(2). Under Civil Local Rule 21 7.1(f)(3)(c), failure to file an opposition can constitute consent to the motion’s or 22 request’s being granted. Furthermore, jurisdiction is presumed to be lacking, until 23 the party invoking the Court’s jurisdiction — here, Plaintiff — establishes it. See 24 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 25 The Court construes Plaintiff’s non-opposition as her consent to granting of 26 the motion. Moreover, after jurisdiction was challenged, Plaintiff did not meet her 27 burden of establishing it. 28 / / / 1 This action is DISMISSED WITHOUT PREJUDICE BUT WITHOUT LEAVE 2 AMEND, for lack of subject matter jurisdiction. 3 4 IT IS SO ORDERED. 5 ||Dated: January 12, 2021 6 ( tw 4. (By Wy 7 Honorable Larry Alan Burns 8 Chief United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28