Luton v. JAMS et al
Filing
8
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 11/19/18 RECOMMENDING that this case be dismissed with prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Coll, A)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
TIMOTHY C. LUTON,
12
13
14
15
No. 2:17-CV-1057-KJM-DMC-P
Plaintiff,
v.
FINDINGS AND RECOMMEDNATIONS
JAMS, et al.,
Defendants.
16
17
Plaintiff, proceeding pro se, brings this civil action for negligence and gross
18
negligence. Pending before the court is Plaintiff’s first amended complaint (Doc. 6). Plaintiff
19
alleges the defendants were negligent and grossly negligent during an arbitration proceeding. For
20
the reasons set forth below, this Court recommends this action be dismissed.
21
22
23
I. SCREENING REQUIREMENT AND STANDARD
The court is required to screen complaints brought by litigants who have been
24
granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under this screening
25
provision, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious;
26
(2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a
27
defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B). Moreover,
28
pursuant to Federal Rule of Civil Procedure 12(h)(3), this court must dismiss an action if the court
1
1
determines that it lacks subject matter jurisdiction. Because plaintiff has been granted leave to
2
proceed in forma pauperis, the court will screen the complaint pursuant to § 1915(e)(2). Pursuant
3
to Rule 12(h)(3), the court will also consider as a threshold matter whether it has subject-matter
4
jurisdiction.
5
6
II. PLAINTIFF’S ALLEGATIONS
7
Plaintiff’s allegations arise from a private arbitration proceeding. Plaintiff alleges
8
that JAMS and Fred K. Morrison, the arbitrator, were negligent in failing to adhere to guidelines
9
during the arbitration and for disregarding evidence during the arbitration, and grossly negligent
10
because of the magnitude of the harm to others. Plaintiff further alleges that JAMS was negligent
11
in failing to review the competency of the arbitrator.
12
13
III. ANALYSIS
14
Plaintiff asserts that his allegations are actionable. However, Plaintiff raises only
15
claims based on a “negligence” theory of liability, none of which “arise under” federal law. For
16
that reason, this court does not have federal question jurisdiction in this case. See 28 U.S.C. §
17
1331. Further, Plaintiff has provided no indication and pleaded no facts that would indicate this
18
court has diversity jurisdiction over this case. See 28 U.S.C. 1332. Thus, this Court lacks
19
subject matter jurisdiction. For that reason, this case must be dismissed for lack of jurisdiction.
20
21
IV. AMENDING THE COMPLAINT
22
The Federal Rules of Civil Procedure provide that a party may amend his or her
23
pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is
24
one to which a responsive pleading is required, within 21 days after service of the responsive
25
pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule
26
12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all
27
other situations, a party’s pleadings may only be amended upon leave of court or stipulation of all
28
the parties. See Fed. R. Civ. P. 15(a)(2). Where leave of court to amend is required and sought,
2
1
the court considers the following factors: (1) whether there is a reasonable relationship between
2
the original and amended pleadings; (2) whether the grant of leave to amend is in the interest of
3
judicial economy and will promote the speedy resolution of the entire controversy; (3) whether
4
there was a delay in seeking leave to amend; (4) whether the grant of leave to amend would delay
5
a trial on the merits of the original claim; and (5) whether the opposing party will be prejudiced
6
by amendment. See Jackson v. Bank of Hawai’i, 902 F.2d 1385, 1387 (9th Cir. 1990). Leave to
7
amend should be denied where the proposed amendment is frivolous. See DCD Programs, Ltd. v.
8
Leighton, 833 F.2d 183, 186 (9th Cir. 1987).
9
Plaintiff was previously granted leave to amend and instructed to plead a cause of
10
action this court can exercise jurisdiction over, or to state how this court has jurisdiction over the
11
negligence and gross negligence claims. Plaintiff has failed to do either. Additionally, in reading
12
the first amended complaint it does not appear possible for Plaintiff to cure the jurisdictional issue
13
through amendment. Thus, the complaint should be dismissed without leave to amend.
14
15
V. CONCLUSION
16
17
Based on the foregoing, the undersigned recommends that this case be dismissed
with prejudice.
18
These findings and recommendations are submitted to the United States District
19
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
20
after being served with these findings and recommendations, any party may file written
21
objections with the court. Responses to objections shall be filed within 14 days after service of
22
objections. Failure to file objections within the specified time may waive the right to appeal. See
23
Martinez v. Ylst,951 F.2d 1153 (9th Cir. 1991).
24
25
Dated: November 19, 2018
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?