Cleveland v. Janssen Pharmaceuticals

Filing 11

ORDER signed by Magistrate Judge Allison Claire on 6/6/2017 DISMISSING plaintiff's First Amended Complaint without prejudice for failure to establish federal jurisdiction. Plaintiff may file a second amended complaint within 30 days consistent with the guidelines stated in this order. Plaintiff's 9 request for appointment of counsel is DENIED as moot, with leave to re-file when plaintiff files a complaint establishing federal jurisdiction. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOMINGO L. CLEVELAND, SR.,

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No. 2:16-cv-2308 MCE AC (PS)

Plaintiff,
v.

ORDER

JANSSEN PHARMACEUTICALS,
Defendant.

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Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the

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undersigned for pretrial proceedings by E.D. Cal. R. (“Local Rule”) 302(c)(21). Plaintiff is

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proceeding in forma pauperis (“IFP”), pursuant to 28 U.S.C. § 1915.

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On October 25, 2016, the Court dismissed plaintiff’s complaint at the screening stage, but

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granted him leave to amend. ECF No. 4. Plaintiff has now filed his First Amended Complaint

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(“FAC”), and a request for the appointment of counsel to represent him. See ECF Nos. 10 (FAC),

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9 (counsel request). The Court DISMISSES the FAC with leave to amend because plaintiff fails

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to adequately allege a basis for federal jurisdiction, and DENIES the request for counsel as moot.

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I.

REQUIREMENTS FOR DIVERSITY JURISDICTION

The FAC does not contain the necessary statement of facts establishing why this federal
district court has jurisdiction over plaintiff’s claim. The “diversity” statute authorizes jurisdiction

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over state claims if the parties are citizens of different states, and if the amount in controversy

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exceeds $75,000. 28 U.S.C. § 1332(a). The complaint alleges that plaintiff seeks $1,000,000 in

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damages, well in excess of the jurisdictional amount. ECF No. 10, 3. The FAC alleges that

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Plaintiff is a citizen of California, and checks the “diversity of citizenship” box as the basis for

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federal jurisdiction. Id. at 1, 5. However, the FAC does not allege defendant’s citizenship, so the

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Court cannot tell whether the Plaintiff and Defendant are actually citizens of different states.

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“Absent unusual circumstances, a party seeking to invoke diversity jurisdiction should be able to

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allege affirmatively the actual citizenship of the relevant parties.” Kanter v. Warner-Lambert Co.,

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265 F.3d 853, 857 (9th Cir. 2001). Simply checking the “diversity of citizenship” box on the

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complaint form is not enough; Plaintiff must actually allege Defendant’s citizenship. The FAC

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will therefore be dismissed with leave to amend so that Plaintiff can include the jurisdictional

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facts of citizenship.

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II. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s First Amended Compliant is DISMISSED without prejudice for failure to

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establish federal jurisdiction. Plaintiff may file a second amended complaint within 30

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days consistent with the guidelines stated above.

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2. Failure to comply with this order may result in a recommendation that this action be
dismissed for lack of prosecution and failure to comply with a court order.
3. Plaintiff’s request for appointment of counsel (ECF No. 9) is DENIED as moot, with
leave to re-file when Plaintiff files a complaint establishing federal jurisdiction.
DATED: June 6, 2017

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