Hassan v. The Cosompolitan of Las Vegas

Filing 9

ORDER Granting 8 Motion to Dismiss for Lack of Jurisdiction. Amended Complaint deadline: 9/14/2015. Signed by Judge Jennifer A. Dorsey on 9/1/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Shaista Hassan,

Case No.: 2:15-cv-00370-JAD-CWH

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Plaintiff,

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v.

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Order Granting Motion to Dismiss
Under FRCP 12(b)(1) for Lack of
Jurisdiction [#8]

The Cosmopolitan of Las Vegas,

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Defendant.

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Defendant Nevada Property 1, LLC (sued as The Cosmopolitan of Las Vegas) moves to

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dismiss this slip-and-fall case on the grounds that pro se plaintiff Shaista Hassan has failed to allege

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facts to establish diversity jurisdiction. In her complaint, Hassan claims the amount in controversy is

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$395,000. But she does not include any facts about the citizenship of either herself or Nevada

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Property. I therefore grant defendant’s motion to dismiss without prejudice and give Hassan until

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September 14, 2015, to file an amended complaint that properly alleges diverse parties.
Background

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Hassan filed this slip-and-fall case in federal court for the injuries she claims she sustained at

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The Cosmopolitan of Las Vegas in 2014. Hassan’s statement regarding jurisdiction is at issue here.

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The complaint reads, “The Jurisdiction in this case is based on diversity of citizenship of the parties

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and the amount in contravery [sic.]. The amount in contraversy [sic.] is $395,000.”1 Nevada

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Property moves to dismiss because Hassan’s complaint lacks facts that show the parties are diverse.

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Discussion
Hassan contends that jurisdiction in this case is based on the diversity of the citizenship of

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herself and Nevada Property. Under 28 U.S.C. § 1332(a)(1), district courts have original jurisdiction

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over all civil actions between citizens of different states when the amount in controversy exceeds

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ECF 1 at 1.

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$75,000.2 Hassan, as the party invoking the power of a federal court, “bears the burden of

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establishing the court’s subject matter jurisdiction.”3 Hassan has not met her burden and Nevada

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Property moves to dismiss this case under the Federal Rules of Civil Procedure 12(b)(1)4 for lack of

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subject-matter jurisdiction.

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To properly invoke a federal court’s subject-matter jurisdiction, the plaintiff must allege in

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the pleadings “[t]he essential elements of diversity jurisdiction, including the diverse residence of all

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parties. . . .”5 Specific facts showing the citizenship of each party must be expressly alleged in the

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complaint or the federal court’s jurisdiction is not triggered. Thus, in Bautista v. Pan Am. World

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Airlines, plaintiff brought a state-law tort claim against Marriott.6 In the complaint, plaintiffs alleged

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that Marriott’s corporate citizenship is “a State other than California,” but they did not allege that all

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of the plaintiffs were citizens of California.7 The appellate court remanded the case back to the

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district court to determine if it had jurisdiction over the case.8
Like the plaintiffs in Bautisa who alleged only some of the elements of diversity jurisdiction

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in the complaint, Hassan only alleged facts related to the amount-in-controversy element of diversity

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jurisdiction. Hassan has not alleged either her citizenship or Nevada Property’s. Therefore, Hassan

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has not met her burden of alleging “[t]he essential elements of diversity jurisdiction, including the

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See 28 U.S.C. § 1332(a)(1).

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Amerault v. Intelecom Support Servs., 16 Fed. Appx. 724, 725 (9th Cir. 2001) (citing Thompson v.
McCombe, 99 F.3d 352, 353 (9th Cir. 1996)).
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The controlling rule—FRCP 12(b)(1)—reads:
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction.

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Bautista v. Pan Am. World Airlines, 828 F.2d 546, 552 (9th Cir. 1987) (emphasis added).

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Id.

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Id.

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Id.

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diverse residence of all parties. . . .”9

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A federal district court should not dismiss a pro se litigant’s complaint without leave to

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amend unless “it is absolutely clear that the deficiencies of the complaint could not be cured by

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amendment.”10 “[B]efore dismissing a pro se complaint, the district court must provide the litigant

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with notice of the deficiencies in his complaint in order to ensure that the litigant uses the

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opportunity to amend effectively.”11

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It is not “absolutely clear” that Hassan cannot state facts alleging the citizenship of both

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herself and Nevada Property, and potentially establish this court’s diversity jurisdiction. This order

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serves as notice of this deficiency in the complaint, and Hassan will be afforded an opportunity to

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amend her complaint to allege true facts to establish the diversity of the parties.

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Conclusion

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Because Hassan has not alleged facts sufficient to establish the parties’ diversity she has not

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carried out her burden to establish this court’s jurisdiction. Accordingly, it is HEREBY ORDERED

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that defendant’s motion to dismiss [Doc. 8] is GRANTED without prejudice and with leave to

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amend. Hassan has until September 14, 2015, to file an amended complaint that contains true facts

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stating the citizenship of herself and Nevada Property. If she fails to timely file a proper amended

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complaint, or if her amended complaint does not state facts to show the complete diversity of the

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parties, her case may be dismissed with prejudice.

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DATED this 1st day of September, 2015

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_________________________________
JENNIFER A. DORSEY
UNITED STATES DISTRICT JUDGE

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Id.

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Schucker v. Rockwood, 846 F.2d 1201, 1203 – 04 (9th Cir. 1988).

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Akhtar v. Mesa, 698 F.3d 1202, 1202 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261
(9th Cir. 1985)).

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