VELEZ v. velez
- Richard Seeborg
- 3:21-cv-08822
- U.S. District Court · Northern District of California
- 2
In Velez v. Velez, Judge Cousins ordered responses about service and whether the probate exception defeats federal jurisdiction.
Alvaro G. Velez must provide information about service on Teresa A. Velez and respond to the jurisdiction question. Teresa A. Velez had not appeared, while George M. Velez had answered and filed a counterclaim. The case could be dismissed if the court later determines that federal jurisdiction is lacking, but this order did not dismiss it.
What happened
In Alvaro G. Velez v. Teresa A. Velez, et al., Alvaro G. Velez filed a complaint seeking the sale of real estate through partition. George M. Velez answered and filed a counterclaim, but Teresa A. Velez had not appeared.
The court questioned whether it had authority to hear the case because the complaint relied on diversity jurisdiction and the property might fall within the probate exception. The court also required an update about whether Teresa Velez had been served with the complaint and summons.
The court did not dismiss the case. Instead, Judge Nathanael M. Cousins ordered the parties to explain why the case should not be dismissed for lack of subject-matter jurisdiction and moved the case-management conference to February 23, 2022.
The detailed version
- VELEZ v. velez · No. 3:21-cv-08822
- Richard Seeborg
- Feb. 7, 2022
Background
Alvaro G. Velez filed a complaint seeking partition for sale of real estate. The complaint asserted diversity jurisdiction, which can allow a federal court to hear certain disputes involving parties from different states. George M. Velez answered the complaint and filed a counterclaim on December 21, 2021. Teresa A. Velez had not appeared.
Service issue
The court noted that Federal Rule of Civil Procedure 4(m) generally requires a defendant to be dismissed if the defendant is not properly served within 90 days after the complaint is filed, unless good cause is shown. The court ordered Alvaro G. Velez to update the joint case-management statement about the status of service on Teresa A. Velez by February 14, 2022.
Jurisdiction issue
The court ordered the parties to show cause, meaning to explain, why the case should not be dismissed for lack of subject-matter jurisdiction. It specifically questioned whether a claim for partition and sale of real estate could support diversity jurisdiction in light of the probate exception. The court explained that this exception generally leaves state probate courts with authority over wills, estate administration, and property held by a state probate court, but does not bar federal courts from deciding matters outside those areas that otherwise fall within federal jurisdiction.
Order
The court did not decide whether it had jurisdiction and did not dismiss the case in this order. It required the plaintiff to respond to the service and jurisdiction issues by February 14, 2022, allowed defendants to respond by February 22, 2022, and permitted no reply without further court approval. It also moved the case-management conference from February 16 to February 23, 2022, to be held by telephone.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.