Gary v. Jones et al

Filing 7

SUA SPONTE JURISDICTIONAL REVIEW ORDER. IT IS ORDERED that Gary has 30 days from the date of this order to amend her complaint to allege sufficient facts to show there is federal jurisdiction over her claims. Signed by Magistrate Judge Joseph H L Perez-Montes on 8/1/2017. (crt,ThomasSld, T)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
DOLLY ANTHONY GARY

CIVIL ACTION 1:17-CV-00865

VERSUS

CHIEF JUDGE DRELL

GARY JONES, et al.

MAGISTRATE JUDGE PEREZ-MONTES

SUA SPONTE JURISDICTIONAL REVIEW ORDER
Pro se Plaintiff Dolly Anthony Gary (“Gary”) filed a complaint against
Defendants Christus St. Francis Cabrini Hospital (“Cabrini Hospital”), Gary Jones (a
retired physician), and Wayne Watkins (a physician employed by Cabrini Hospital).
Gary premises federal jurisdiction on a federal question under 28 U.S.C. § 1331.
Federal courts have limited subject matter jurisdiction and cannot entertain
cases unless authorized by the Constitution and legislation. See Coury v. Prot, 85 F.
3d 244, 248 (5th Cir. 1996). The Court has “an independent obligation to determine
whether subject-matter jurisdiction exists, even in the absence of a challenge from
any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). This duty persists
throughout all phases of the litigation, even after trial and the entry of final
judgment. See Coury, 85 F.3d at 506-07.
There is a presumption against subject matter jurisdiction, which must be
rebutted by the party bringing an action to federal court. See Coury, 85 F.3d at 248.
The party seeking to invoke the jurisdiction of the federal court has the burden of
proving jurisdiction exists. See Aetna Cas. & Sur. Co. v. Hillman, 796 F.2d 770, 775

(5th Cir. 1986). Therefore, Gary must show either: (1) her claim arises under federal
law pursuant to 28 U.S.C. § 1331; or (2) there is diversity jurisdiction under 28 U.S.C.
§ 1332.
Gary alleges her claims arise under federal law. As the factual basis of her
claim, Gary states only “lost voice after surgery.” Medical malpractice claims do not
arise under federal law. See Smith v. Faucheux, 194 F.3d 1308, *1 (5th Cir. 1999),
cert. den., 528 U.S. 1156 (2000); Acosta v. Bleich, 2004 wl 1057570 at *2 (E.D. La.
2004). They are state law claims that, in Louisiana, arise under the Louisiana
Medical Malpractice Act, La. R.S. 40:1231.1, et seq.
Moreover, diversity jurisdiction does not exist in this case. All parties are
citizens of Louisiana. See 28 U.S.C. § 1332. Therefore, the basis for this Court’s
jurisdiction is not adequately alleged in the complaint. Accordingly,
IT IS ORDERED that Gary has 30 days from the date of this order to amend
her complaint to allege sufficient facts to show there is federal jurisdiction over her
claims.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this _____
1st
day of August, 2017.
______________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge