Stewart v. Blackmore et al
Filing
17
OPINION AND ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 15 in full. Matter is DISMISSED WITHOUT PREJUDICE. Any appeal of this decision would not be taken in good faith. Signed by Judge Susan P. Watters on 5/1/2015. Mailed to Stewart. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
BILLINGS DIVISION
FILED
MAY - I 2015
Clerk, U.S. District Court
District Of Montana
Billings
WALTER STEWART,
CV-14-000133-BLG-SPW
ORDER AND OPINION
Plaintiff,
vs.
ANTHONY BLACKMORE and HEIDI
BLACKMORE,
Defendants.
Walter Stewart filed a Complaint against Anthony Blackmore and Heidi
Blackmore. (Doc. 2). Stewart is a prisoner proceeding informa pauperis so the
Court is required to review his complaint and determine whether his allegations are
frivolous, fail to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune. 28 U.S.C. § 1915(3)(2). Magistrate Judge
Ostby formerly granted Stewart's motion to proceed in forma pauperis and
allowed Stewart the opportunity to amend his Complaint when it failed to state a
claim. (Doc. 6).
Stewart filed his Amended Complaint on April 15, 2015. (Doc. 14). In her
Findings and Recommendations, Judge Ostby now recommends dismissing
Stewart's Amended Complaint and dismissing the case without prejudice. (Doc.
15).
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Stewart had 14 days to file objections to Judge Ostby's Findings and
Recommendations. He filed his objection on April 29, 2015. (Doc. 16). After a
de novo review, this Court adopts Judge Ostby's Findings and Recommendations,
dismisses Stewart's Amended Complaint, and dismisses the case.
I.
Discussion
This Court is required to review de novo the portions of the Findings and
Recommendations to which Stewart objects. 28 U.S.C. § 636(b)(l)(B). Stewart
essentially argues that Judge Ostby erred in determining that he failed to
sufficiently plead subject matter jurisdiction. (Doc. 16 at 1-2).
Of course, federal courts have jurisdiction where diversity between the
parties exists and the amount in controversy exceeds $75,000 or where a federal
question has been raised. 28 U.S.C. § 1332.
As Judge Ostby pointed out, however, Stewart admitted in his Amended Complaint
that he and the defendants are citizens of Montana. (Doc. 14 at 3). So, diversity
jurisdiction does not exist. See 28 U.S.C. § 1332(a). Further, Stewart's breach of
contract claim does not give rise to a federal question; it is a "creature of state
law." Opera Plaza Residential Parcel Homeowners Ass 'n v. Hoang, 376 F.3d 831,
840 (9th Cir. 2004). Because he failed to adequately plead subject matter
jurisdiction, Stewart's cause of action must be dismissed.
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II.
Conclusion
The Court finds no clear error. For the reasons given in the Findings and
Recommendation, Stewart's Amended Complaint is DISMISSED and the Findings
and Recommendations (Doc. 15) are adopted in full. IT IS FURTHER ORDERED
that this matter is DISMISSED WITHOUT PREJUDICE for lack of subject matter
jurisdiction.
The Clerk of Court is directed to dismiss this case and close the file.
The Clerk of Court is further directed to have the docket reflect that the
Court certifies pursuant to Fed.R.App.P. 24(a)(3)(A) that any appeal of this
decision would not be taken in good faith. The record makes plain that there is no
subject matter jurisdiction to bring Stewart's claims in federal court.
~
DATEDthis ~o dayofApril2015.
Susan P. Watters
United States District Court
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