Fishman v. Villa Carmel

Filing 3

ORDER that Plaintiff's Complaint is dismissed without prejudice for lack of subject matter jurisdiction and Plaintiff's 2 Motion for Leave to Proceed in forma pauperis is denied as moot. Signed by Judge David G Campbell on 06/07/07.(ESL)

Fishman v. Villa Carmel

Doc. 3

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Stanley Fishman, Plaintiff, vs. Villa Carmel, et al., Defendants.

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No. CV 07-1108-PHX-DGC ORDER

Plaintiff Stanley Fishman commenced this action by filing a pro se complaint against Defendant Villa Carmel on June 4, 2007. Dkt. #1. Plaintiff has filed a motion to proceed in forma pauperis. Dkt. #2. For the reasons discussed below, the Court will dismiss the complaint without prejudice and deny the motion as moot. I. Dismissal of the Complaint. "[A] federal court may dismiss sua sponte if jurisdiction is lacking." Fiedler v. Clark, 714 F.2d 77, 78 (9th Cir. 1983) (citing Mansfield, Coldwater & Lake Mich. R.y. Co. v. Swan, 111 U.S. 379, 382 (1884)); see Franklin v. Or. State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981) (same). "While a party is entitled to notice and an opportunity to respond when a court contemplates dismissing a claim on the merits, it is not so when the dismissal is for lack of subject matter jurisdiction." Scholastic Entm't, Inc. v. Fox Entm't Group, Inc., 336 F.3d 982, 985 (9th Cir. 2003) (citations omitted); see Fed. R. Civ. P. 12(h)(3) ("Whenever
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it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."). "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute[.]" Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Pursuant to federal statutes, this Court has subject matter jurisdiction over a case only if the complaint alleges a federal cause of action or the amount in controversy exceeds $75,000 and the parties are citizens of different states. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."); 28 U.S.C. § 1332(a) ("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between ­ (1) citizens of different States[.]"). Contrary to the requirements of Rule 8, Plaintiff's complaint does not contain a statement of the Court's subject matter jurisdiction. See Fed. R. Civ. P. 8(a) ("A pleading . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends[.]"). Nor do the allegations of the complaint suggest that such jurisdiction exists. Plaintiff's complaint does not allege a federal cause of action. He cites the case of Leatherman v. Tarrant County, 507 U.S. 163, 164 (1993), in which the Supreme Court held that claims under 42 U.S.C. § 1983 are not subject to a heightened pleading standard, but he does not state whether his claim involves a federal cause of action. Plaintiff is advised that to state a claim under § 1983, he must allege that he was "deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The complaint also fails to allege diversity jurisdiction. While it alleges damages in excess of $75,000, it does not allege that the parties are citizens of different states. To allege diversity jurisdiction properly, Plaintiff must allege that the amount in controversy exceeds $75,000 and that he is a citizen of a different state than Defendant Villa Carmel and any other Defendants. 28 U.S.C. § 1332(a). If a corporation owns Villa Carmel, Plaintiff should note -2Case 2:07-cv-01108-DGC Document 3 Filed 06/07/2007 Page 2 of 3

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that a corporation is deemed to be a citizen of the state in which it is incorporated or the state where it has its principal place of business. 28 U.S.C. § 1332(c)(1). The Court will dismiss the complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3); Scholastic Entm't, 336 F.3d at 989 (affirming sua sponte dismissal of claims governed by state law); Franklin, 662 F.2d at 1343 (affirming sua sponte dismissal of claims that "[did] not allege the deprivation of any constitutional right or state a federal cause of action"); see also Kokkonen, 511 U.S. at 377 (stating that the court presumes lack of jurisdiction until the plaintiff proves otherwise). The complaint will be dismissed without prejudice. Should Plaintiff elect to file a new complaint, he must comply with the jurisdictional requirements of federal court.1 II. Plaintiff's Motion to Proceed In Forma Pauperis. Because the complaint will be dismissed for lack of jurisdiction, the Court will deny as moot Plaintiff's motion to proceed in forma pauperis. Plaintiff may file another motion to proceed in forma pauperis if he decides to file a new complaint. IT IS ORDERED: 1. Plaintiff's complaint (Dkt. #1) is dismissed without prejudice for lack of subject matter jurisdiction. 2. Plaintiff's motion to proceed in forma pauperis (Dkt. #2) is denied as moot. DATED this 7th day of June, 2007.

If Plaintiff were an inexperienced pro se litigant, the Court would consider granting him leave to amend the existing complaint to add jurisdictional allegations. But Plaintiff is no novice; he has filed 21 cases in federal court since March of 2007. The Court also notes that the grievance in his complaint appears to be purely of a local nature and one that does not raise issues of federal law. -3Case 2:07-cv-01108-DGC Document 3 Filed 06/07/2007 Page 3 of 3

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