Murry v. Kentucky Fried Chicken

Filing 12

ORDER DISMISSING FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND (Illston, Susan) (Filed on 9/25/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 12-06542 SI

CLAUDE MURRY,

ORDER DISMISSING FIRST AMENDED
COMPLAINT WITHOUT LEAVE TO
AMEND

Plaintiff,
v.
ALAMEDA COUNTY MEDICAL CENTER;
PROVIDENCE PAVILION; HIGHLAND
HOSPITAL; and BURGER-KING
RESTAURANT,
Defendants.

/

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On December 27, 2012, pro se plaintiff Claude Murry filed a complaint against Kentucky Fried
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Chicken (“KFC”), and an application to proceed in forma pauperis. On March 6, 2013, the Court
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granted Murry’s request to proceed in forma pauperis, and dismissed his complaint pursuant to 28
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U.S.C. § 1915(e)(2) for failure to state a claim and lack of subject matter jurisdiction. Docket No. 9.
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The Court granted Murry leave to file an amended complaint, and, on April 1, 2013, Murry filed a first
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amended complaint (“FAC”) dropping KFC as a defendant and adding as defendants Alameda County
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Medical Center, Summit Medical Center Providence Pavilion, Highland Hospital, and Burger-King
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Restaurant (“Burger-King”). Docket No. 10, First Amended Complaint (“FAC”). On April 19, 2013,
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the Court held a case management conference. Docket No. 11. Plaintiff failed to attend the conference.
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28 U.S.C. § 1915(e)(2) authorizes federal courts to dismiss a complaint filed in forma pauperis

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if the Court determines that the complaint is frivolous or fails to state a claim. See 28 U.S.C. §

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1915(e)(2)(B)(ii). Murry’s FAC is inartful and at times incomprehensible, consisting primarily of a

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series of conclusory statements and phrases. The FAC appears to allege causes of action against

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Alameda County Medical Center, Summit Medical Center Providence Pavilion, and Highland Hospital

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for malpractice, negligence, and negligent infliction of emotional distress. FAC at 1-2, 12-15, 20-23.

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The FAC also appears to allege a cause of action against Burger-King for negligence. Id. at 24-34.

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After reviewing the allegations in the FAC, the Court concludes that, even when construed liberally,

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Murry’s FAC is deficient because it does not allege a basis for federal jurisdiction, and it fails to

United States District Court
For the Northern District of California

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properly state a claim for relief.

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Federal courts have limited jurisdiction and can only adjudicate cases which the Constitution

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or Congress authorize them to adjudicate: generally only those cases involving diversity of citizenship

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(where the parties are from diverse states) under 28 U.S.C. § 1332, or a federal question under 28 U.S.C.

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§ 1331, or those cases to which the United States is a party. Morrison v. United States Dept. of Justice,

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2012 WL 4685763 (N.D. Cal. Oct. 1, 2012) (citing Kokkonen v. Guardian Life Ins. Co. of America, 511

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U.S. 375 (1994)). Federal courts have a duty to raise and decide issues of subject matter jurisdiction

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sua sponte at any time it appears subject matter jurisdiction may be lacking. See Fed. R. Civ. Proc.

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12(h)(3); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). If the Court determines that

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subject matter jurisdiction is lacking, it must dismiss the case. Id. The burden of establishing federal

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subject matter jurisdiction rests upon the party invoking the Court’s jurisdiction. See Kokkonen, 511

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U.S. at 377.

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The FAC does not allege a federal cause of action. The FAC at times refers to 47 U.S.C. § 605

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of the Communications Act and 18 U.S.C. § 2511 of the Wiretap Act, which both prohibit signal piracy.

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FAC at 4, 5, 21, 26. See DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir. 2008). However, plaintiff

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does not appear to allege that any of the defendants violated these federal statutes. See id. Because

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plaintiff does not allege a federal cause of action, the Court does not have federal question jurisdiction

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over this action. See 28 U.S.C. § 1331; Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (“‘[A] suit

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‘arises under’ federal law ‘only when the plaintiff’s statement of his own cause of action shows that it

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is based upon [federal law].’”).
In addition, the Court does not have diversity jurisdiction over the action. For a federal court

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to exercise diversity jurisdiction, there must be “complete diversity” between the parties and the amount

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in controversy requirement of $75,000 must be met. See 28 U.S.C. § 1332(a); Strawbridge v. Curtiss,

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7 U.S. (3 Cranch) 267, 267 (1806). “Complete diversity” requires that “the citizenship of each plaintiff

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is diverse from the citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.

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Ct. 467, 136 L. Ed. 2d 437 (1996). Plaintiff and defendant Alameda County Medical Center are both

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California citizens. See Johnson v. Alameda Co. Med. Ctr., 205 Cal. App. 4th 521, 524 (2012) (finding

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United States District Court
For the Northern District of California

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that “Alameda County Medical Center (Medical Center) is a [California] public entity”). Therefore,

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there is not “complete diversity” between the parties, and the Court lacks diversity jurisdiction. See 28

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U.S.C. § 1332(a); Strawbridge, 7 U.S. at 267.

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In addition, the FAC fails to state a claim for relief. Under the Federal Rules of Civil Procedure,

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to state a claim, a complaint must contain more than labels, conclusions, or naked assertions. Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must contain sufficient factual allegations to state

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a claim for relief that is plausible on its face. Id. Although plaintiff appears to be alleging state law

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causes of action for malpractice, negligence, and negligent infliction of emotional distress, plaintiff fails

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to provide sufficient factual allegations supporting these causes of action. Indeed, the Court is unable

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to decipher from the FAC what wrongful conduct plaintiff alleges the defendants committed. The Court

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is mindful of its obligation to liberally construe pro se pleadings. See Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010). However, even under that standard, plaintiff fails to state a claim.

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In sum, the Court lacks jurisdiction over plaintiff’s action, and the first amended complaint fails

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to state a claim. For the foregoing reasons, the Court DISMISSES the first amended complaint without

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leave to amend.

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IT IS SO ORDERED.
Dated: September 25, 2013
SUSAN ILLSTON
United States District Judge

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