Ronald Livingston v. Louis Dejoy ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        OCT 15 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    RONALD LIVINGSTON,                              No. 21-55114
    Plaintiff-Appellant,            D.C. No. 2:20-cv-06975-MWF-JPR
    v.
    MEMORANDUM*
    LOUIS DeJOY, Postmaster General; et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Michael W. Fitzgerald, District Judge, Presiding
    Submitted October 12, 2021**
    Before:      TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
    Ronald Livingston appeals pro se from the district court’s judgment
    dismissing his action arising out of an Equal Employment Opportunity
    Commission hearing. We have jurisdiction under 
    28 U.S.C. § 1291
    . We review de
    novo a sua sponte dismissal for lack of subject matter jurisdiction. Scholastic Ent.,
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Inc. v. Fox Ent. Grp., Inc., 
    336 F.3d 982
    , 985 (9th Cir. 2003). We affirm.
    The district court properly dismissed Livingston’s action without prejudice
    because Livingston failed to allege a federal question or complete diversity of
    citizenship in his complaint. See 28 U.S.C §§ 1331, 1332; Rivet v. Regions Bank
    of La., 
    522 U.S. 470
    , 475 (1998) (to establish jurisdiction under § 1331, a federal
    question must be “presented on the face of the plaintiff’s properly pleaded
    complaint” (citation and internal quotation marks omitted)); Caterpillar Inc. v.
    Lewis, 
    519 U.S. 61
    , 68 (1996) (§ 1332 applies only when “the citizenship of each
    plaintiff is diverse from the citizenship of each defendant”). Contrary to
    Livingston’s contention, the district court did not have subject matter jurisdiction
    pursuant to United States Postal Service Publication 133.
    The district court did not err in declining to grant Livingston’s motions for
    default judgment because the district court had determined that it lacked subject
    matter jurisdiction over the action. See Speiser, Krause & Madole v. Ortiz, 
    271 F.3d 884
    , 886 (9th Cir. 2001) (standard of review); Tuli v. Republic of Iraq (In re
    Tuli), 
    172 F.3d 707
    , 712 (9th Cir. 1999) (explaining that a district court has an
    affirmative duty to determine whether it has subject matter jurisdiction prior to
    entering default judgment, whether or not the party against whom default judgment
    is sought has appeared).
    Livingston’s motion to continue to use the mailing process (Docket Entry
    2                                    21-55114
    No. 5) is granted.
    AFFIRMED.
    3   21-55114