Torres v. Wal-Mart Stores, Inc. et al
Filing
19
OPINION AND ORDER that the 16 Final Report and Recommendation is NOT ADOPTED. IT IS FURTHER ORDERED that this matter is REFERRED to Magistrate Judge Justin S. Anand for further proceedings consistent with this Order. IT IS FURTHER ORDERED that Plaintiff's claims against John Doe #1 are DISMISSED. IT IS FURTHER ORDERED that Plaintiff file, on or before November 4, 2013, an amended complaint that complies with this Order, including by asserting that this action was timely filed on November 1, 2012, and by asserting facts sufficient to allege that this Court has subject matter jurisdiction over this matter. Failure to file, on or before November 4, 2013, the amended complaint allowed by this Order will result in the dismissal of this action. IT IS FURTHER ORDERED that Plaintiffs 14 Motion for Service of Process is DENIED WITHOUT PREJUDICE. Signed by Judge William S. Duffey, Jr on 9/26/2013. (anc) Modified on 9/27/2013 in order to update docket text (anc).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JORGE ANTONIO TORRES a/k/a
MARTIN M. RINCON,
Plaintiff,
v.
1:12-cv-3844-WSD
WAL-MART STORES, INC. and
JOHN DOE #1,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [16] (“R&R”) recommending that this action be
dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2). Also before the Court
is Plaintiff’s Motion for Service of Process [14].
I.
BACKGROUND
On November 1, 2012, Plaintiff Jorge Antonio Torres a/k/a Martin M.
Rincon (“Plaintiff”), an inmate at a federal prison in Victorville, California
proceeding pro se and in forma pauperis, filed this personal injury action against
Defendants Wal-Mart Stores, Inc. (“Walmart”) and John Doe #1 (“Doe”)
(collectively, “Defendants”). In his Complaint [2], Plaintiff alleges that, on
September 12, 2009, before he was incarcerated, he was injured in a Walmart store
in Lithia Springs, Georgia when a Walmart employee struck Plaintiff’s leg with a
floor cleaning machine. He asserts state law claims for negligence against
Defendants.
On June 18, 2013, after reviewing Plaintiff’s Complaint under 28 U.S.C.
§ 1915(e)(2), Magistrate Judge Anand issued his R&R recommending that this
action be dismissed as frivolous. Judge Anand first found that the Court does not
have federal question jurisdiction over this matter because, despite the Complaint’s
citation to federal civil rights statutes, Plaintiff has not asserted a civil rights action
against Defendants. Judge Anand next found that, although the Court may have
diversity jurisdiction over the case, Plaintiff’s claims are barred by the applicable
statute of limitations. Judge Anand specifically noted that the statute of limitations
for personal injury actions in Georgia is two years from the date of injury and that
Plaintiff’s injuries occurred more than three years before the filing of this action.
On July 8, 2013, Plaintiff filed his Objections [18] to the R&R. Plaintiff
argues that the Magistrate Judge erred in concluding that Plaintiff asserted federal
question jurisdiction only under the civil rights statutes, that the Court lacks
2
diversity jurisdiction over this matter, and that Plaintiff’s claims are time barred.1
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732 (11th Cir. 1982). A district judge “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). With
respect to those findings and recommendations to which objections have not been
asserted, the Court must conduct a plain error review of the record. United States
v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
B.
Review of R&R
Plaintiff objects to the Magistrate Judge’s findings regarding the Court’s
subject matter jurisdiction and the applicability of the statute of limitations.2
1
On May 15, 2013, Plaintiff filed his Motion for Service requesting that service be
made by a United States Marshal pursuant to Rule 4(c)(3) of the Federal Rules of
Civil Procedure.
2
Although Plaintiff did not raise his arguments before the Magistrate Judge, the
Court fully considers them because the R&R was issued sua sponte. Cf.
Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001).
3
1.
Subject Matter Jurisdiction
Plaintiff first objects that the Magistrate Judge failed to consider Plaintiff’s
assertion of federal jurisdiction under 28 U.S.C. §§ 1331 and 1367. Section 1331
confers federal courts with jurisdiction over “civil actions arising under the
Constitution, laws, or treaties of the United States,” and Section 1367 confers
supplemental jurisdiction over claims related to those over which the Court has
jurisdiction under Section 1331. Plaintiff’s Complaint asserts only state law
claims. The Court does not have jurisdiction over the claims under either Section
1331 or Section 1367 and could have only diversity jurisdiction.
Plaintiff further objects that the Magistrate Judge found that diversity
jurisdiction is lacking. Plaintiff misreads the R&R. In it, Judge Anand did not
consider whether diversity jurisdiction exists in this matter but assumed that it does
for purposes of his statute of limitations analysis. Plaintiff’s objections regarding
the Court’s subject matter jurisdiction are overruled.3
2.
Statute of Limitations
Plaintiff next objects to the Magistrate Judge’s finding that this action is
barred by the two-year statute of limitations for personal injury actions. Plaintiff
3
As discussed below, after considering Plaintiff’s objections to the R&R, the Court
independently addresses the existence of diversity jurisdiction in this matter.
4
argues that the period of limitations was tolled because he previously filed suit
against Defendants, on the same claims asserted here, in state court and that the
state court action was dismissed, for want of prosecution, less than six months
before initiating this action. With his Objections, Plaintiff submitted a docket
sheet from the State Court of Gwinnett County showing that a case, styled Torres
v. Walmart Stores et al., was filed on October 21, 2010. Plaintiff also submitted an
order, entered by the State Court of Gwinnett County on May 14, 2012, dismissing
the case for want of prosecution.
When reviewing a complaint for frivolity under 28 U.S.C. § 1915(e)(2), a
court may dismiss the action as time-barred only if it “appear[s] beyond a doubt
from the complaint itself that [the plaintiff] can prove no set of facts which would
avoid a statute of limitations bar.” Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir.
2003) (quoting Leal v. Ga. Dep’t of Corrections, 254 F.3d 1276, 1280 (11th Cir.
2001)). When the period of limitations may be subject to tolling, this standard is
not satisfied and the plaintiff should be given leave to file an amended complaint
pleading facts to establish that his claim is not time-barred. See id.; see also Leal,
254 F.3d at 1280 (remanding case to district court after sua sponte dismissal
because plaintiff showed that limitations period may have been tolled).
Under Georgia law, a case that has been dismissed for want of prosecution
5
may be “recommenced in a [state court] or in a federal court either within the
original applicable period of limitations or within six months after the
discontinuance or dismissal, whichever is later.” See O.C.G.A. § 9-2-61(a); White
v. KFC Nat’s Mgmt. Co., 493 S.E.2d 244, 245 (Ga. Ct. App. 1997). On this basis,
the Court finds that Plaintiff’s claims may not be time-barred. Plaintiff’s objection
is sustained, and he may file an amended complaint that expressly alleges why his
claims are not time-barred.
C.
Diversity Jurisdiction
Because the Court “is obligated to inquire into subject matter jurisdiction
sua sponte whenever it may be lacking,” the Court also considers whether diversity
jurisdiction does, in fact, exist in this matter. See Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 410 (11th Cir. 1999). Diversity jurisdiction exists where the
amount in controversy exceeds $75,000 and the suit is between citizens of different
states. 28 U.S.C § 1332(a). “Diversity jurisdiction, as a general rule, requires
complete diversity—every plaintiff must be diverse from every defendant.”
Palmer Hosp. Auth. of Randolph Cnty., 22 F.3d 1559, 1564 (11th Cir. 1994).
Although the Complaint seeks an award of $500,000 in compensatory
damages and thus satisfies the amount in controversy, the Complaint does not
properly allege the citizenship of the parties. As for himself, Plaintiff alleges only
6
that he “was domiciled in Astell, Georgia” on the date of his injuries. This
allegation is not sufficient because “[c]itizenship for diversity purposes is
determined at the time the suit is filed.” MacGinnitie v. Hobbs Grp., LLC, 420
F.3d 1234, 1239 (11th Cir. 2005).4
As for Walmart, Plaintiff alleges only that it is “a corporation organized and
existing under the laws of the State of Arkansas.” For purposes of diversity
jurisdiction, a corporation is a citizen of both its state of incorporation and the state
in which it has its principal place of business. Rolling Greens MHP, L.P. v.
Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1021 n.1 (11th Cir. 2004) (citing
28 U.S.C. § 1332(c)(1)). Plaintiff’s Complaint does not show the state in which
Walmart has its principal place of business.5
4
The Court notes that a “prisoner does not acquire a new domicile in the place of
his imprisonment, but retains the domicile he had prior to incarceration.” Polakoff
v. Henderson, 370 F. Supp. 690, 693 (N.D. Ga. 1973), aff’d, 488 F.2d 977 (5th Cir.
1974).
5
Although the Complaint also names Doe as a Defendant, the Complaint does not
describe Doe or assert any claims against Doe. “As a general matter, fictitiousparty pleading is not permitted in federal court.” Richardson v. Johnson, 598 F.3d
734, 738 (11th Cir. 2010). While courts have made exceptions when the plaintiff
specifically describes an individual without stating his or her name precisely or
correctly, Plaintiff has not provided any description of Doe in this case. See id.
The Court finds that Plaintiff’s claims against Doe are required to be dismissed,
and the Court does not consider Doe in evaluating the Court’s subject matter
jurisdiction.
7
Because the Complaint fails to show the parties’ citizenship, the Court is not
able to determine whether it has subject matter jurisdiction over this proceeding.
In his amended complaint, Plaintiff is required to allege sufficient facts to show the
Court’s jurisdiction. See Travaglio v. Am. Express Co., No. 11-15292, 2013 WL
4406389, at *2–3 (11th Cir. Aug. 19, 2013) (publication pending) (holding that
court must dismiss action for lack of subject matter jurisdiction unless pleadings or
“sworn” evidence establishes jurisdiction).6
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [16] is NOT ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s claims against John Doe #1
are DISMISSED.
IT IS FURTHER ORDERED that Plaintiff file, on or before November 4,
2013, an amended complaint that complies with this Order, including by asserting
that this action was timely filed on November 1, 2012, and by asserting facts
sufficient to allege that this Court has subject matter jurisdiction over this matter.
6
Because Plaintiff is required to file an amended complaint, Plaintiff’s Motion for
Service is denied without prejudice. Plaintiff may re-file the Motion for Service
after he files an amended complaint.
8
Failure to file, on or before November 4, 2013, the amended complaint allowed by
this Order will result in the dismissal of this action.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Service of
Process [14] is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that this matter is REFERRED to
Magistrate Judge Justin S. Anand for further proceedings consistent with this
Order.
SO ORDERED this 26th day of September, 2013.
9
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?