GALVAN v. NELSON

Filing 24

ORDER AFFIRMING RECOMMENDED DECISION re: 17 Report and Recommendations. ; granting in part and denying in part 12 Motion to Dismiss By JUDGE JOHN A. WOODCOCK, JR. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SABRA GALVAN,
Plaintiff,
v.
SHARON NELSON,
Defendant.

)
)
)
)
)
)
)
)
)

1:15-cv-00285-JAW

ORDER AFFIRMING RECOMMENDED DECISION
On July 20, 2015, Sabra Galvan, acting pro se, filed a complaint against Sharon
Nelson, alleging that Ms. Nelson engaged in multiple violations of law and claiming
this Court has jurisdiction for “Violation of Civil Rights” and “Discrimination of the
ADA [Americans with Disabilities Act].” Compl. at 1-4 (ECF No. 1). On November
25, 2015, Sharon Nelson filed a motion to dismiss the complaint. Def. Sharon Nelson’s
Mot. to Dismiss Pursuant to Fed. R. Civ. P. 12(b) (ECF No. 12). On December 15,
2015, Ms. Galvan responded to the motion to dismiss. Pl. Sabra Galvan’s Resp. to
Def. Sharon Nelson’s Mot. to Dismiss, and Moves Not to Dismiss due to the Fact that
the Claim Arises under the Constitutional Laws of the United States, and Civil Rights
Act, and the ADA [Americans with Disabilities Act], Also due to the Fact that the Def.
Lives Out of State this Is a Diversity Case (ECF No. 14). On December 22, 2015, Ms.
Nelson replied to Ms. Galvan’s response. Def. Sharon Nelson’s Reply Mem. in Supp.
of her Rule 12(b) Mot. to Dismiss (ECF No. 16).

On January 25, 2016, the Magistrate Judge issued a recommended decision in
which he recommended that the Court grant in part and deny in part the motion.
Recommended Decision on Mot. to Dismiss (ECF No. 17). More specifically, he wrote:
Based on the foregoing analysis, I recommend that the Court grant in
part Defendant’s motion to dismiss and dismiss all claims other than
Plaintiff’s claim for damages related to the alleged dangerous trees on
the property, unless within the deadline for filing an objection to this
Recommended Decision, Plaintiff amends her complaint to state
additional plausible claims on the other subject matters Plaintiff
references in her complaint.
Id. at 7 (footnote omitted). Objections to the Recommended Decision were due on
February 11, 2016.

On February 9, 2016, Ms. Nelson filed an objection to the

Recommended Decision. Def.’s Obj. to R. & R. (ECF No. 19) (R. & R. Obj.). On
February 11, 2016, Ms. Galvan filed a motion to extend time to amend her complaint.
Mot. for More Time to Amend my Compl. to State a Plausible Fed. Claim (ECF No.
20). On February 23, 2016, Ms. Nelson filed an objection to Ms. Galvan’s motion to
extend time. Def.’s Opp’n to Pl.’s “Mots.” for More Time to Amend Compl. (ECF No.
21).
On March 9, 2016, the Court issued an order granting Ms. Galvan’s motion to
extend time to amend her complaint, allowing her until March 25, 2016 to file an
amended complaint. Order on Mot. to Extend Time to Am. Compl. (ECF No. 22). Ms.
Galvan has failed to comply with the March 9, 2016 Order; she has filed no such
amended complaint.1 Accordingly, the Magistrate Judge’s recommended decision on
the complaint as originally filed is ready for resolution.

The Court docket indicates that the Clerk’s letter to Ms. Galvan, enclosing the Court’s Order,
was returned to the Clerk’s Office as undeliverable. See Mail (ECF No. 23). Even though the Court is
1

2

The Court reviewed and considered the Magistrate Judge’s Recommended
Decision, together with the entire record; the Court has made a de novo
determination of all matters adjudicated by the Magistrate Judge’s Recommended
Decision; and the Court concurs with the recommendations of the United States
Magistrate Judge for the reasons set forth in his Recommended Decision.
The Court briefly addresses Ms. Nelson’s objection. On February 9, 2016, Ms.
Nelson objected to the Recommended Decision, which she says “purports to allow
Plaintiff’s claims to proceed on the very thin premise that there are allegedly
dangerous trees on the property.” R. & R. Obj. at 1. Ms. Nelson then quotes the
Magistrate Judge’s Recommended Decision in Galvan v. Levasseur, 1:15-cv-00283JAW (ECF No. 16), in which the Magistrate Judge concluded that the dangerous tree
allegation against Ms. Levasseur was a state law claim and not cognizable in federal
court. Id. (quoting Galvan v. Levasseur, 1:15-cv-00283-JAW, Recommended Decision
on Mot. to Dismiss, at 5 (ECF No. 16)). Ms. Nelson claims that the Levasseur case
was based on the “same operative facts.” Id.
The problem is that the operative facts for purposes of federal court jurisdiction
are not the same in Levasseur and here. Both Ms. Galvan and Ms. Levasseur live in
Maine, and therefore, this Court may not assume diversity jurisdiction. 28 U.S.C. §
1332(a)(1). As the Magistrate Judge wrote in Levasseur, the Court has no jurisdiction
over Ms. Galvan’s dangerous tree claim against Ms. Levasseur, which resonated in

solicitous of Ms. Galvan’s status as a pro se litigant, “[a] party, not the district court, bears the burden
of keeping the court apprised of any changes in [her] mailing address.” Badger v. Correct Care Sols.,
No. 1:15-cv-00517-JAW, 2016 U.S. Dist. LEXIS 48130, at *10 (D. Me. Apr. 11, 2016) (quoting Carey v.
King, 856 F.2d 1439, 1441 (9th Cir. 1988)).

3

state law. By contrast, Ms. Nelson lives in North Carolina, Compl. at 3, and subject
to the jurisdictional limit of $75,000, the Court has diversity jurisdiction over the
dangerous tree claim. 28 U.S.C. § 1332(a)(1). Ms. Nelson’s claim that the Court
should dismiss Ms. Galvan’s case against her for the same reason that it dismissed
Ms. Galvan’s case against Ms. Levasseur is frivolous.
1) The Court ORDERS that the Recommended Decision of the
Magistrate Judge (ECF No. 17) be AFFIRMED;
2) The Court GRANTS in part and DENIES in part Defendant Sharon
Nelson’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b) (ECF
No. 12);
3) The Court GRANTS Defendant Nelson’s motion to dismiss without
prejudice to all claims, except Plaintiff Sabra Galvan’s claim relating
to dangerous trees on the property; and
4) The Court OVERRULES Defendant’s Objection to Report and
Recommended Decision (ECF No. 19).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 20th day of May, 2016

4