Memorandum Decision re Motion to Dismiss #2

DO NOT PUBLISH
UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA
In re: 
No. 98-3-4290-SDM 
Chapter 7


PATRICIA A. McCOLM,
Debtor.
____________________________________/

PATRICIA A. McCOLM,			
Plaintiff,			
A.P. No. 99-3-066-TC
vs.					
							
WALT DISNEY CORPORATION;       	
AMERICAN BROADCASTING COMPANY, INC.,
JOHN STOSSEL; STEVEN THEOHARIS;	 
DAVID GREENBAUM; RICHARD NELSON;    
GREG SPENCER; BANK OF AMERICA;	 
FIREMAN'S FUND INSURANCE COMPANY,	 
and DOES 1-50, 			
Defendants.
______________________________________/

MEMORANDUM

Defendants Gregg S. Spencer, Bank of America, N.T.&S.A., and Fireman’s Funds Insurance Company filed motions to dismiss the above-entitled action on the basis of failure to state a claim upon which relief can be granted. The motions were set for hearing on August 6, 1999. The motions were properly served and filed 28 days before that hearing date pursuant to Bankruptcy Local Rule 7007-1(a). On July 23, 1999, Plaintiff filed an ex parte motion to continue the August 6, 1999 hearing. The court returned the moving papers, stating that the court declined to consider the motion on an ex parte basis. Plaintiff’s opposition to the motions was due on July 23, 1999 per Bankruptcy Local Rule 7007-1(b). Plaintiff had filed no written opposition as of August 4, 1999. On August 5, 1999, the court cancelled the August 6, 1999 hearing, and stated its intention to dismiss the action for lack of subject-matter jurisdiction. FACTS Plaintiff filed a petition under chapter 11 of the Bankruptcy Code on August 28, 1998. Plaintiff’s chapter 11 case was converted to one under chapter 7 on January 27, 1999. Plaintiff filed the above-entitled action (the Action) in this court on February 11, 1999. On April 22, 1999, Plaintiff filed an amended Schedule C in her bankruptcy case, claiming the Action exempt. Neither the chapter 7 trustee nor any other party in interest filed an objection to that claim of exemption, and the time for objecting has expired under Fed. R. Bankr. P. 4003(b). DISCUSSION Federal courts are courts of limited jurisdiction. They have a duty to examine their own subject-matter jurisdiction, whether or not that issue is raised by a party. A federal court may dismiss an action on its own motion where subject-matter jurisdiction is lacking. See 13 Wright, Miller & Cooper, Federal Practice and Procedure 2d § 3522 (1984). The subject-matter jurisdiction of the Bankruptcy Courts is defined in 28 U.S.C. § 1334(b): “Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” This court lacks jurisdiction over the Action under each of the three prongs of section 1334(b). First, the complaint does not allege a cause of action “arising in” the bankruptcy case, because the acts alleged in the complaint occurred in 1997, before Plaintiff filed her bankruptcy case. Second, the claims asserted do not “arise under” title 11. The complaint contains no refer-ence to title 11, nor can any of the acts alleged be construed to give rise to a claim created by title 11. Third, the claims asserted in the complaint are not “related to” the bankruptcy case. A claim is related to a bankruptcy case if it conceivably could have an effect on the bankruptcy estate. See In re Fietz, 852 F.2d 455, 457 (9th Cir. 1988). Plaintiff has claimed the Action exempt, and no timely objection was filed to that claim of exemption. Thus, any recovery on the action would benefit Plaintiff rather than the bankruptcy estate, and the Action is therefore not related to the bankruptcy case under Fietz. I determine that it is appropriate to dismiss the Action sua sponte. Although the Defendants’ present motions sought dismissal only for failure to state a claim upon which relief can be granted, several defendants in Adversary Proceeding No. 99-3-104-TC brought motions to dismiss that action for lack of subject-matter jurisdiction. Those motions were also scheduled for hearing on August 6, 1999 and sought dismissal on exactly the same grounds upon which the court finds a lack of subject-matter jurisdiction over the present action. Plaintiff failed to file any response to those motions. I thus determine that Plaintiff has had an adequate opportunity to be heard regarding the question of subject-matter jurisdiction, and that the instant action should be dismissed without further hearing. CONCLUSION The Action is dismissed without prejudice as to all claims against all Defendants for lack of subject-matter jurisdict