McKenzie v. Watkins

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/18/14 ordering that Motion to proceed in forma pauperis 2 shall be granted. Recommending that the action be dismissed without prejudice based on lack of federal subject matter jurisdiction. The Clerk of Court be directed to close this case.F&R referred to Judge John A. Mendez. Objections to F&R due within fourteen (14) days. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ABENA MCKENZIE, 12 No. 2:14-cv-1653-JAM-KJN PS Plaintiff, 13 v. ORDER AND 14 KENNETH LEE WATKINS, 15 Defendant. FINDINGS AND RECOMMENDATIONS 16 17 Plaintiff Abena McKenzie, proceeding without counsel, has requested leave to proceed in 18 forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.)1 Plaintiff’s application in support of 19 her request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915. 20 Accordingly, the undersigned grants plaintiff’s request to proceed in forma pauperis. The determination that a plaintiff may proceed in forma pauperis does not complete the 21 22 required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at 23 any time if it determines that the allegation of poverty is untrue, or if the action is frivolous or 24 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 25 an immune defendant. 26 //// 27 28 1 This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 1 Importantly, a federal court also has an independent duty to assess whether federal subject 2 matter jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. 3 Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had 4 a duty to establish subject matter jurisdiction over the removed action sua sponte, whether the 5 parties raised the issue or not”); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 6 1996). A federal district court generally has original jurisdiction over a civil action when: (1) a 7 federal question is presented in an action “arising under the Constitution, laws, or treaties of the 8 United States” or (2) there is complete diversity of citizenship and the amount in controversy 9 exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). 10 In this case, plaintiff alleges that she signed a contract with defendant Kenneth Lee 11 Watkins to store some of plaintiff’s property in his garage for about 6 months. However, 12 according to plaintiff, defendant subsequently began to verbally and sexually harass her, and 13 refused to return at least some of plaintiff’s property. The complaint does not identify any 14 specific claims or causes of action, but alleges that plaintiff suffered great mental distress and 15 harm to her health. (See generally ECF No. 1.) Regardless of the merits of plaintiff’s claims, on which the court expresses no opinion, the 16 17 court concludes that it lacks federal subject matter jurisdiction over the action. Liberally 18 construed, plaintiff’s complaint alleges only potential state law tort, property, and/or contract 19 claims, and does not assert any federal claims; nor do any federal claims appear plausible based 20 on the factual allegations involved. Furthermore, even assuming that plaintiff seeks damages 21 exceeding $75,000, there is no diversity of citizenship, because both plaintiff and defendant are 22 citizens of California. Therefore, the court lacks federal subject matter jurisdiction over the 23 action, and the court recommends that the action be dismissed on that basis. However, such 24 dismissal should be without prejudice, giving plaintiff an opportunity to pursue her claims in state 25 court, if she so desires.2 26 27 28 2 It may well be that plaintiff actually intended to file this action in state court, but inadvertently filed it in federal court, because the complaint requests “the Court of California to please hold Mr. Kenneth Lee Watkins accountable….” (ECF No. 1 at 3.) 2 1 2 Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted. 3 IT IS ALSO HEREBY RECOMMENDED that: 4 1. The action be dismissed without prejudice based on lack of federal subject matter 5 jurisdiction. 6 2. The Clerk of Court be directed to close this case. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 9 days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served on all parties and filed with the court within fourteen (14) days after service of the 13 objections. The parties are advised that failure to file objections within the specified time may 14 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 15 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 16 17 IT IS SO ORDERED AND RECOMMENDED. Dated: July 18, 2014 18 19 20 21 22 23 24 25 26 27 28 3

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