Case5:15-cv-04145-EJD Document10 Filed09/22/15 Page1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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FRANCO CARACCIOLI,

Case No. 5:15-cv-04145-EJD

Plaintiff,
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ORDER TO SHOW CAUSE

v.
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FACEBOOK, INC.,

United States District Court
Northern District of California

Defendant.
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Plaintiff Franco Caraccioli (“Plaintiff”) commenced the instant action on September 11,

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2015, against Defendant Facebook, Inc. (“Defendant”), and filed a First Amended Complaint

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(“FAC”) on September 21, 2015. See Docekt Item Nos. 1, 8. As is its obligation, this court has

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reviewed the FAC to determine whether Plaintiff included allegations sufficient to establish

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federal jurisdiction and has been guided by the principles that govern such an inquiry. See

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Mashiri v. Dep’t of Educ., 724 F.3d 1028, 1031 (9th Cir. 2013). First, it is mindful that, in

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contrast to state courts, “[f]ederal courts are courts of limited jurisdiction.” Kokkonen v. Guardian

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Life Ins. Co of Am., 511 U.S. 375, 377 (1994). Federal jurisdiction can generally arise in two

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ways: (1) from the presence of a federal question, or (2) from diversity of the parties. See 28

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U.S.C. §§ 1331, 1332. For jurisdiction based on a federal question, the court looks to the face of a

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“well-pleaded complaint” to determine whether a cause of action is created by federal law or

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whether the plaintiff’s right to relief necessarily depends on the resolution of a substantial question

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of federal law. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988) (citing

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Franchise Tax Bd. of California v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)).

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“Under the longstanding well-pleaded complaint rule . . . a suit ‘arises under’ federal law ‘only

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when the plaintiff’s statement of his own cause of action shows that it is based upon [federal

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law].’” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (quoting Louisville & Nashville R. Co.

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v. Mottley, 211 U.S. 149, 152 (1908)). Factual allegations, and not labels, are determinative of

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whether a cause of action actually presents a federal question. See Labram v. Havel, 43 F.3d 918,

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920 (4th Cir. 1995).

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invoking the federal court’s jurisdiction has the burden of proving the actual existence of subject

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matter jurisdiction.” Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). To that end,

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Federal Rule of Civil Procedure 8 requires the plaintiff to provide “a short and plain statement of

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United States District Court
Northern District of California

Second, the court must look to the FAC’s jurisdictional allegations because “[a] party

the grounds for the court’s jurisdiction.”
Here, federal question jurisdiction is not clearly established by the FAC. That pleading

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reveals that Plaintiff asserts ten causes of action against Defendant, none of which are created by

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federal law. Nor do the factual allegations demonstrate that Plaintiff’s claims arise under federal

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law despite their labels. Thus, on the face of the FAC, federal jurisdiction is not apparent.

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Perhaps in recognition of this deficiency, Plaintiff alleges in the FAC’s jurisdictional

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statement that “this case involves substantial issues of federal law involving the Communications

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Decency Act 47 U.S.C. § 230.” See FAC, at ¶ 23. But that allegation, and the discussion of the

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statute in other areas of the FAC, is still not enough for Plaintiff to satisfy his obligation to

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establish federal jurisdiction. This is because § 230, which generally works to immunize

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providers of interactive computer services against liability arising from content created by third

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parties, is not a claim for relief asserted by Plaintiff. Instead, it is a potential affirmative defense

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to Plaintiff’s claims, no matter its artful inclusion in the FAC. Affirmative defenses are not proper

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bases for federal jurisdiction. See Effects Assocs., Inc. v. Cohen, 817 F.2d 72, (9th Cir. 1987)

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(“[A] claim ‘arises under’ federal law for purposes of federal question jurisdiction on the basis of a

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well-pleaded complaint, not from anticipation of possible affirmative defenses.”).

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Accordingly, the court issues an order to show cause why this action should not be

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dismissed for lack of subject matter jurisdiction. If Plaintiff does not, by October 6, 2015,

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demonstrate in writing the basis for this court’s subject matter jurisdiction in a manner consistent

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with the discussion above, the court will dismiss this action without prejudice so that Plaintiff may

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properly assert the claims in state court. See Freeman v. Oakland Unified Sch. Dist., 179 F.3d

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846, 847 (9th Cir. 1999). To be clear, any response to this order must identify which portions of

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the FAC in its current form assert a federal claim by (1) identifying the federal law at issue, and

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(2) specifying the existing allegations relevant to such a claim.

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No hearing will be held on the Order to Show Cause unless ordered by the court. The

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“Motion for the District Court to Hear the Case and not an Alternative Dispute Resolution

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Program” (Docket Item No. 6) is DENIED.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: September 22, 2015
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EDWARD J. DAVILA
United States District Judge

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Case No.: 5:15-cv-04145-EJD
ORDER TO SHOW CAUSE