Harmon v. Superior Court of California

This is the second time in recent months that we have had before us an appeal from a judgment of dismissal made by a District Judge of the Southern District of California on his own motion and before service of process upon any defendant. (See Addison v. The Grand Lodge of International Association of Machinists, 9 Cir., 1962, 300 F.2d 863 ). The dismissal here was by a different judge. It reads as follows:

The District Court always has power to dismiss for lack of jurisdiction. It can do so at any time that such lack appears, and on its own motion. (See Clark v. Paul Gray, Inc., 1939, 306 U.S. 583, 588 , 59 S.Ct. 744 , 83 L.Ed. 1001 ; Rule 12(h), F.R.Civ.P., 28 U.S.C.) But it cannot dismiss for lack of jurisdiction, without giving the plaintiff an opportunity to be heard, unless such lack appears on the face of the complaint and is obviously not curable. This is not such a case.

The complaint asserts jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C.A. §§ 1983 and 1985(2), the so-called Civil Rights Act. The named defendants are the Superior Court of California and judges of that court and of the District Court of Appeal of California, who decided a case against appellant, the…