Section 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
[U.S. Constitution, Article III, Section 2]
28 U.S.C. §1332
TITLE 28
> PART
IV >
CHAPTER
85 > Sec. 1332.
Sec. 1332.
- Diversity of citizenship; amount in controversy; costs
(a) The district
courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs, and is between -
(1)
citizens of different
States;
(2) citizens of
a
State and citizens or subjects
of a foreign state;
(3) citizens of
different States
and in which citizens or subjects of a foreign state are additional
parties; and
(4) a foreign state,
defined in section 1603(a) of this title, as plaintiff and citizens
of a State or of different
States.
For the purposes
of this section, section 1335, and section 1441, an alien admitted
to the United States for permanent residence shall be deemed a citizen
of the State in which such alien is domiciled.
(b) Except when express
provision therefore is otherwise made in a statute of the United States,
where the plaintiff who files the case originally in the Federal courts
is finally adjudged to be entitled to recover less than the sum or value
of $75,000, computed without regard to any setoff or counterclaim to
which the defendant may be adjudged to be entitled, and exclusive of
interest and costs, the district court may deny costs to the plaintiff
and, in addition, may impose costs on the plaintiff.
(c) For the purposes
of this section and section 1441 of this title -
(1) a corporation
shall be deemed to be a citizen of any State by which it has been
incorporated and of the State where it has its principal place of
business, except that in any direct action against the insurer of
a policy or contract of liability insurance, whether incorporated
or unincorporated, to which action the insured is not joined as
a party-defendant, such insurer shall be deemed a citizen of the
State of which the insured is a citizen, as well as of any State
by which the insurer has been incorporated and of the State where
it has its principal place of business; and
(2) the legal representative
of the estate of a decedent shall be deemed to be a citizen only
of the same State as the decedent, and the legal representative
of an infant or incompetent shall be deemed to be a citizen only
of the same State as the infant or incompetent.
(d) The word ''States'',
as used in this section, includes the Territories, the District of Columbia,
and the Commonwealth of Puerto Rico
Rutter's California Practice
Guide: Civil Procedure Before Trial (2002), paragraph 3:623-3:625:
b. [3:623] "Diversity"
cases exceeding $75,000: Claims between citizens of different
states where the claim or value of the property in controversy exceeds
$75,000 (exclusive of interest or costs) may be filed in federal
court as well as state court. [28 USC §1332]
(1) Diversity
of citizenship: "Citizenship" means domicile (see discussion
of domicile, 3:153 ff.). If there are several plaintiffs and
defendants, none of the plaintiffs can reside in the same state
as any of the defendants (complete diversity required). Plaintiff
can "create" diversity of citizenship with defendant by moving to
another state before filing suit; but the change of domicile must
be bona fide (intent to remain indefinitely). If there is
diversity when the action is filed, federal court jurisdiction is
proper, even if a subsequent change of domicile destroys diversity.
For diversity purposes,
a corporation is deemed a citizen of both the state in which
it was incorporated and the state in which it has its principal
place of business (28 USC §1332(c)(1)). Thus, a corporation
is deemed a California citizen if either incorporated here
or its principal place of business is here.
Cross-refer:
See detailed discussion in Schwarzer, Tashima & Wagstaffe, Cal.Prac.
Guide: Federal Civ.Pro. Before Trial (TRG), Ch. 2C.
(2) [3:625]
Other instances of diversity: Federal court jurisdiction
also exists in actions between citizens and aliens, and in suits
by foreign nations against U.S. citizens. [See 28 USC §1332(a)(2),(4)]
c. [3:626]
Effect of dual filings: Where jurisdiction is concurrent,
the same action can be filed in either or both federal and state
courts. If filed in both, each court acquires jurisdiction...but
neither acquires exclusive jurisdiction. Each may proceed at its
own pace until one or the other reached final judgment and becomes res
judicata on the claim. Neither will interfere with or try to restrain
each other's proceedings. [Donovan v. City of Dallas (1964) 377 US 408,
412, 84 S.Ct. 1579, 1582; Fowler v. Ross (1983) 142 CA.3d 472, 476-477,
191 CR 183, 186]
[Rutter's California Practice Guide: Civil Procedure Before Trial (2002), paragraph 3:623-3:625, speaking of STATUTORY and not COMMON LAW jurisdiction]
The Court of Appeals
ruled that petitioners had not tendered a substantial constitutional
claim and ordered dismissal of the entire action for want of subject
matter jurisdiction. The principle applied by the Court of Appeals -
that a "substantial" question was necessary to support jurisdiction
- was unexceptionable under prior cases. Over the years this Court has
repeatedly held that the federal courts are without power to entertain
claims otherwise within their jurisdiction if they are "so attenuated
and unsubstantial as to be absolutely devoid of merit," Newburyport
Water Co. v. Newburyport, [415 U.S. 528, 537]
193 U.S. 561, 579 (1904); "wholly insubstantial," Bailey v. Patterson,
369 U.S. 31, 33 (1962); "obviously frivolous," Hannis Distilling
Co. v. Baltimore,
216 U.S. 285, 288 (1910); "plainly unsubstantial," Levering & Garrigues
Co. v. Morrin,
289 U.S. 103, 105 (1933); or "no longer open to discussion," McGilvra
v. Ross,
215 U.S. 70, 80 (1909). One of the principal decisions on
the subject, Ex parte Poresky,
290 U.S. 30, 31 -32 (1933), held, first, that "[i]n
the absence of diversity of citizenship, it is essential to jurisdiction
that a substantial federal question should be presented";
second, that a three-judge court was not necessary to pass upon this
initial question of jurisdiction; and third, that "[t]he question may
be plainly unsubstantial, either because it is `obviously without merit'
or because `its unsoundness so clearly results from the previous decisions
of this court as to foreclose the subject and leave no room for the
inference that the question sought to be raised can be the subject of
controversy.' Levering & Garrigues Co. v. Morrin, supra; Hannis Distilling
Co. v. Baltimore,
216 U.S. 285, 288 ; McGilvra v. Ross,
215 U.S. 70, 80 ."
[Hagans
v. Lavine, 415 U.S. 528 (1974)]
Young v. IRS, 596 F.Supp.
141 (N.D.Inc. 09/25/1984)
The court notes that
two general jurisdiction statutes may have some potential applicability
to this case. However, the court is convinced that neither one of these
statutes will supply this court with jurisdiction over plaintiff's claim.
The first statute, 28 U.S.C. § 1340, grants the district court original
jurisdiction of any civil action arising under any act of Congress providing
for internal revenue. The very language of the statute indicates that
this section does not create jurisdiction in and of itself. Section
1340 makes clear that the jurisdiction extends to civil actions arising
under the Internal Revenue laws; as such, the suit must be based on
some cause of action which the Internal Revenue Code recognizes and
allows the plaintiff to bring. Absent some recognition of this kind
of suit under the Internal Revenue Code, § 1340 will not create an independent
basis for jurisdiction. As one court has noted, "given the limitations
which Article III of the Constitution places on the jurisdiction of
the federal courts, it is doubtful that the various jurisdictional statutes
[like § 1340] could do more than waive the congressionally imposed jurisdictional
amount requirement." Crown Cork & Seal Co. v. Pennsylvania Human Relations
Commn., 463 F. Supp. 120, 127 n. 8 (E.D.Pa. 1979).
It appears that this
case does not arise under the Internal Revenue Code. Plaintiff does
not seek either to enforce any provision of the Code or to pursue a
statutory remedy under the Code. Rather, he seeks damages for the alleged
violation of his rights. In fact, the whole thrust of plaintiff's case
is that he is outside the scope of the Code so that the actions of the
defendants are violations of his rights. However, if the plaintiff's
claim comes from outside the Code, then it logically cannot "arise under"
the Code, and therefore § 1340 cannot provide plaintiff with jurisdiction.
A second possible source
of general jurisdiction is 28 U.S.C. § 1331, the federal question jurisdiction
statute. Plaintiff claims that he is outside the scope of the federal
income tax laws. Such a claim brings into question the interpretation
of several provisions of the Internal Revenue Code. This may be sufficient
to create some kind of federal question jurisdiction based on the interpretation
of the Code. However, this federal question would not provide a sufficient
jurisdictional basis for plaintiff's damage claim. In order to recover
damages, the plaintiff must show that he can recover damages for violations
stemming from defendants' alleged unconstitutional activity. Plaintiff
can obtain damages against the defendants under only one of two theories:
a claim under the Federal Tort Claims Act, 28 U.S.C. § 2671-2680; or
an implied cause of action under the principles of Bivens v. Six Unknown
Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). As will
be discussed more fully in the next section of this order, a claim under
the Federal Tort Claims Act will fail on principles of sovereign immunity.
Furthermore, in Seibert v. Baptist, 594 F.2d 423, 429-32 (5th Cir. 1979),
cert. denied, 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980), the
court refused to recognize a Bivens-type cause of action against the
IRS and IRS officials and agents. The actions of the present defendants
in assessing the taxes and penalties against the plaintiff and in generally
operating under the IRS regulatory framework were not of the outrageous
nature of those found in Bivens. This court agrees with the Seibert
court and refuses to recognize a Bivens-type cause of action against
the IRS or IRS officials and agents for the collection and assessment
of taxes. Thus, while a federal question may exist, it provides no basis
for plaintiff to recover damages. As such, § 1331 cannot provide this
court with jurisdiction over plaintiff's damage claim.
[Young v. IRS, 596
F.Supp. 141 (N.D.Inc. 09/25/1984)]
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