UNITED STATES DISTRICT COURT F I L E D
FOR THE DISTRICT OF COLUMBIA

JAN 1 8 2011
THIEN TRAN<a/w=~'rvie»<)u<»c ) ¢°..'.‘3§§?;?i.%‘§{;¥$§§?'&‘§,&‘.t'€.§§¥a
Trinh) )
)
Plaintiff, )
) Civil Case No. 10-1090 (RJL)
v. )
)
)
FAIRFAX CABLE ACCESS )
CORPORATION (D/B/A FAIRFAX )
PUBLIC ACCESS) et al., )
)
Defendants. )

MEMoRANDUJ-<_)\HNIQN

(January[l, 201 l)

Before the Court is defendant Fairfax Public Access Corporation’s ("FPA")
motion to dismiss. Plaintiff Thien Tran ("plaintiff" or "Tran"), proceeding pro se,
alleges that Liem Duong Bui and Be Bay Ngyuen ("defendants Bui and Ngyuen"),
producers of a public-access television show, and FPA (together, "defendants"), are liable
for broadcasting defamatory statements about him. Because Tran fails to establish
subject matter jurisdiction, the Court GRANTS defendant FPA’s motion to dismiss.

BACKGROUND

Tran is a resident of Fairfax County, Virginia. Compl. 11 1. He alleges that

defendants Bui and Ngyuen produced, hosted, and broadcasted a public-access television

show in which they and their guests libeled, slandered, and defamed him. Compl. 1111

2-3. Tran concedes that the show was aired on FPA in Virginia, Compl. ‘|l 2, and that
FPA is located (as its name suggests) in Fairfax County, Virginia. Alleging common-law
defamation and invoking Virginia law,l Tran seeks $500,000 in compensatory and
$500,000 in punitive damages.
ANALYSIS

Defendant FPA moves to dismiss this case pursuant to Fed. R. Civ. P. l2(b)(l),
(3), and (6). Because Rule l2(b)(l) focuses on subject matter jurisdiction, and thus a
court’s power to hear a plaintiffs claim, "a Rule l2(b)(l) motion imposes on the court an
affirmative obligation to ensure that it is acting within the scope of its jurisdictional
authority." Grand Loa’ge of the Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9,
13 (D.D.C. 200l). Accordingly, when deciding a Rule l2(b)(l) motion for lack of
subject matter jurisdiction, a court may give closer scrutiny to a plaintiffs factual
allegations than it does when evaluating a Rule l2(b)(6) motion for failure to state a
claim. Ia’. Plaintiff, however, does not carry the burden of establishing subject matter
jurisdiction ~ even under the "less stringent standards" of scrutiny afforded to the
pleadings of pro se litigants, see Haines v. Kerner, 404 U.S. 519, 520 (1972); Richardson
v. Um'ted States, 193 F.3d 545, 548 (D.C. Cir. 1999). How so?

"Federal district courts are courts of limited jurisdiction and ‘possess only that

1 Although Tran cites two federal statutes, neither establishes a relevant cause of action. 47

U.S.C. § 558, see Compl.1l 6, does not establish a cause of action and instead provides cable
operators immunity from certain claims. And 18 U.S.C. § l34l, see Pl.’s Resp. to D.’s Mot. to

2

power conferred by Constitution and statute."’ Patterson v. Dz'strict of Columbia Housz`ng
Auth., 691 F. Supp. 2d ll7, ll8 (D.D.C. 20l()) (quoting Kokkonen v. Guardian Life Ins.
C0., 511 U.S. 375, 377 (1994)). Under 28 U.S.C. § l33l, federal district courts have
jurisdiction over civil actions arising under the Constitution, laws, or treaties of the
United States, and under 28 U.S.C. § l332(a) "may have jurisdiction over state common
law disputes that arise between citizens of different states where the amount in
controversy exceeds $75,000." Patterson, 691 F. Supp. 2d at ll9; see also Arbaugh v. Y
& H Corp., 546 U.S. 500, 513 (2006). There is a presumption against jurisdiction and a
plaintiff seeking jurisdiction bears the burden of establishing it. Kokkonen, 511 U.S. at
377. If at any time a court determines that it lacks subject matter jurisdiction, it "must
dismiss the action." FED. R. CIV. P. l2(h)(3).

Tran, unfortunately, does not establish subject matter jurisdiction under either 28
U.S.C. § 1331 or § 1332 because his complaint does not present a cause of action arising
under the Constitution, federal law, or U.S. treaties. Nor does his common-law
defamation claim, which alleges violation of Virginia statutes. Compl. 1111 6, 7. Finally,
Tran fails to meet the diversity of citizenship requirements of § l332(a): he concedes, as
he must, that all parties reside in, or principally operate in, Fairfax, Virginia. Compl. 1111

l,2.

Dismiss 11 IV(l), pertains to mail fraud, not defamation.

As such, Tran fails to establish subject matter jurisdiction in this Court and FPA’s
motion to dismiss for subject matter jurisdiction [Dkt. #6] must be GRANTED. An

order consistent with this decision accompanies this Memorandum Opinion.

dillard

RICHARD JLL,E)oN
United States District Judge

