Felix v. C.P.Q. Freight System et al

Filing 33

Judge Patti B. Saris: ORDER entered. MEMORANDUM AND ORDER: Plaintiff's Amended Complaint is STRICKEN; Plaintiff shall file a Second Amended Complaint within 35 days after completion of mediation in the event this action is not settled; Any Secon d Amended Complaint must demonstrate the diversity jurisdiction of this Court by showing that the parties, including any added parties, are completely diverse from the plaintiff;Plaintiff is required to comply with Local Rule 15.1(b) by making advanc ed service of any Second Amended Complaint on any new parties in accordance with Rule 5(b) of the Federal Rules of Civil Procedure; and If the Second Amended Complaint is filed in accordance with these directives, that document shall become the opera tive pleading in this action, and a separate Order shall enter for the issuance of summonses as to any non-represented parties, for service of process by the United States Marshal Service under Fed. R. Civ. P. 4, and for the United States Marshal Service to advance the costs of service. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARC FELIX,
Plaintiff,
v.
C.P.Q. FREIGHT SYSTEM, ET AL.
Defendants.

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C.A. No. 11-10071-PBS

MEMORANDUM AND ORDER
October 11, 2011
SARIS, D.J.
I.

INTRODUCTION

On January 10, 2010, plaintiff Marc Felix (“Felix”), a
prisoner then in custody at the Souza Baranowski Correctional
Center in Shirley, Massachusetts, and now in custody at the
Massachusetts Treatment Center in Bridgewater, Massachusetts,
filed a self-prepared Complaint against: (1) C.P.Q. Freight
System, a New Jersey business; and (2) Fung Wah Bus Company, a
New York business.

Felix alleged that on June 23, 2008, a truck

operated by C.P.Q. Freight System collided into a Fung Wah Bus
Company bus, in which he was a passenger.

As a result of the

accident, he sustained personal injuries.

The subject matter

jurisdiction of this Court over the instant action was based on
diversity of citizenship under 28 U.S.C. § 1332.
On January 18, 2011, summonses issued, and on February 18,
2011, an Answer was filed by Fung Wah Bus Company.1

Various

pretrial motions were filed, and those matters were referred to

1

No appearance has been filed by C.P.Q. Freight Systems.

Magistrate Judge Boal.

On June 28, 2011, Magistrate Judge Boal

held a scheduling conference, and set a scheduling Order that
provided, inter alia, that any amendments to the pleadings may
not be filed after August 15, 2011.
No. 24).

See Scheduling Order (Docket

On June 29, 2011, Magistrate Judge Boal referred this

case to the Court’s Alternative Dispute Resolution program.

See

Order of Referral (Docket No. 25).
On July 15, 2011, Felix filed a Notice of Change of Address
(Docket No. 26), indicating his new mailing address as 30
Administration Road, Bridgewater, Massachusetts (the
Massachusetts Treatment Center (“MTC”)).

Thereafter, on August

15, 2011 (the date of the amended pleadings deadline), Felix
filed a Motion for an Extension of Time to file amended
pleadings, by 30 days.

That motion was ALLOWED by Electronic

Order on August 19, 2011; however, the mail was returned as
undeliverable as addressed, on August 25, 2011.

The Court’s

electronic notice indicates that this mail was sent to the wrong
address, i.e., it was sent to the Old Colony Correctional Center
at 1 Administration Road, and not to the MTC at 30 Administration
Road.
On August 29, 2011, pro bono counsel was appointed for Felix
for the limited purpose of mediation, and the case was later
assigned to Magistrate Judge Collings.

He set a mediation for

October 11, 2011, but, upon motion, the matter was reset for

2

November 30, 2011.
Thereafter, on September 22, 2011, Felix filed, without any
motion for leave to file, an Amended Complaint.2

He also sent a

letter to the Pro Se Staff Attorneys Office seeking the issuance
of summonses and an Order for service of process by the United
States Marshal Service.
The Amended Complaint seeks to add additional parties to
this action.

These additional parties include: (1) Alajandro

Fallo; (2) Yong Quan Chen; (3) Unknown Owners and Managers of
Fung Wah Bus Transportation Inc.; (4) Safety Insurance;3 and
(5) Osleivy L. Gomez, President and Manager of C.P.Q. Freight
Systems.

Felix does not state the citizenship of the defendants,

but alleges that defendant Yong Quan Chen, the operator of the
Fung Wah bus, has an address in Boston, Massachusetts.

Further,

Felix alleges that defendant Safety Insurance has a Boston,
Massachusetts address.4
II.

DISCUSSION

Felix’s Amended Complaint poses several problems.

First,

2

Felix also filed discovery documents which were placed in
the file, but not docketed as part of the record, in accordance
with Clerk’s Office policy and the Rules regarding submission of
discovery documents.
3

Safety Insurance was previously listed as an interested
party in this action.
4

He fails to allege any further information about the
principal place of business or the place of incorporation.
3

the Amended Complaint, filed days after the deadline imposed by
Magistrate Judge Boal, appears to be untimely.

Nevertheless,

applying the mailbox rule under these circumstances,5 and
considering the fact that Felix did not receive proper notice
from the Court of Magistrate Judge Boal’s ruling on his Motion
for an extension of time (notwithstanding that he filed a timely
Notice of Change of Address), this Court will not consider the
Amended Complaint as untimely filed based on Magistrate Judge
Boal’s deadline.
Notwithstanding that the Court’s deadlines may have been
met, this Court’s Local Rules require that “[a]mendments adding
parties shall be sought as soon as an attorney reasonably can be
expected to have become aware of the identity of the proposed new
party.”

United States District Court Local Rule 15.1(a).

The

Rules also provides for service on a new party, stating that:
A party moving to amend a pleading to add a new party
shall serve, in the manner contemplated by Fed. R. Civ.
P. 5(b), the motion to amend upon the proposed new
party at least 14 days in advance of filing the motion,
together with a separate document stating the date on
which the motion was filed. A motion to amend a
pleading to add a new party shall be accompanied by a
certificate stating that it has been served in advance
on the new party as required by this rule.

5

Under the mailbox rule, the operative date of a prisoner
filing is the date upon which the prisoner commits the mail to
the custody of prison authorities for mailing. The Court
presumes that, in view of the timing of receipt of Felix’s
filing, his Amended Complaint was filed within the deadline
imposed by the Court.
4

United States District Court Local Rule 15. 1(b).
Even though Felix is pro se and not an attorney, he is not
excused from compliance with these Local Rules; however, since
Magistrate Judge Boal has set a deadline for completion of all
discovery by December 30, 2011, this Court cannot find that Felix
should be penalized for not amending his Complaint sooner.
Despite resolution of the issues noted above, there is a
fundamental problem with Felix’s Amended Complaint.

As pled,

this Court reasonably infers that at least one of the added
defendants is a Massachusetts citizen for purposes of diversity.
Thus, the Amended Complaint destroys complete diversity, and this
Court lacks subject matter jurisdiction over the Amended
Complaint under 28 U.S.C. § 1332.6

In light of this, the entire

action is subject to dismissal pursuant to Fed. R. Civ. P.
12(b)(1).7

6

Diversity must be complete: the citizenship of each
plaintiff must be shown to be diverse from that of each
defendant. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,
373-74 (1978). For purposes of diversity, “citizenship is
determined by domicile, which can be established by demonstrating
that the individual is physically present in the state and has an
intent to remain indefinitely.” Hall v. Curran, 599 F.3d 70, 72
(1st Cir. 2010).
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See McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004); Fed.
R. Civ. P. 12(h)(3)(“If the court determines ... it lacks subject
matter jurisdiction, the court must dismiss the action.”). See
also In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir.
1988)(“It is too elementary to warrant citation of authority that
a court has an obligation to inquire sua sponte into its subject
matter jurisdiction, and to proceed no further if such
jurisdiction is wanting.”) Federal courts are courts of limited
5

Given that a mediation has been scheduled before Magistrate
Judge Collings with pro bono counsel and the defendants, this
Court finds that the better practice under these circumstances is
to STRIKE the Amended Complaint, and give leave to Felix to file
a Second Amended Complaint within 35 days after completion of
mediation should this case not settle.

Any Second Amended

Complaint must demonstrate the diversity jurisdiction of this
Court by showing that the parties, including any added parties,
are completely diverse from Felix.

Notwithstanding that Felix is

proceeding in forma pauperis, he is required to comply with Local
Rule 15.1(b) by making advanced service on any new parties in
accordance with Rule 5(b) of the Federal Rules of Civil
Procedure.

If the Second Amended Complaint is filed in

accordance with these directives, that document shall become the
operative pleading in this action, and a separate Order shall
enter for the issuance of summonses as to any non-represented
parties, for service of process by the United States Marshal
Service under Fed. R. Civ. P. 4, and for the United States
Marshal Service to advance the costs of service.

jurisdiction, “and the requirement of subject-matter jurisdiction
‘functions as a restriction on federal power.’” Fafel v.
Dipaola, 399 F.3d 403, 410 (1st Cir. 2005)(quoting Insurance
Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982)). “The existence of subject-matter jurisdiction
‘is never presumed.’” Fafel, 399 F.3d at 410 (quoting Viqueira v.
First Bank, 140 F.3d 12, 16 (1st Cir. 1998)). Rather, federal
courts “must satisfy themselves that subject-matter jurisdiction
has been established.” Id.
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III.

CONCLUSION

Based on the foregoing, it is hereby Ordered that:
1.

Plaintiff’s Amended Complaint is STRICKEN;

2.

Plaintiff shall file a Second Amended Complaint within 35
days after completion of mediation in the event this action
is not settled;

3.

Any Second Amended Complaint must demonstrate the diversity
jurisdiction of this Court by showing that the parties,
including any added parties, are completely diverse from the
plaintiff;

4.

Plaintiff is required to comply with Local Rule 15.1(b) by
making advanced service of any Second Amended Complaint on
any new parties in accordance with Rule 5(b) of the Federal
Rules of Civil Procedure; and

5.

If the Second Amended Complaint is filed in accordance with
these directives, that document shall become the operative
pleading in this action, and a separate Order shall enter
for the issuance of summonses as to any non-represented
parties, for service of process by the United States Marshal
Service under Fed. R. Civ. P. 4, and for the United States
Marshal Service to advance the costs of service.

SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
UNITED STATES DISTRICT JUDGE

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