Pettigrew v. Wilson et al

Filing 10

ORDER that Clerk of Court shall file the complaint. The Complaint is DISMISSED, with leave to amend Amended Complaint deadline: 3/20/2017. Signed by Magistrate Judge Nancy J. Koppe on 2/17/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DONNELLE PETTIGREW,

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Plaintiff(s),
vs.
TOM WILSON, et al.,

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Defendant(s).

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Case No. 2:16-cv-03012-APG-NJK
ORDER

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Plaintiff is proceeding in this action pro se and requested authority pursuant to 28 U.S.C.

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§ 1915 to proceed in forma pauperis. Docket No. 1. On January 9, 2017, the Court denied

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Plaintiff’s application without prejudice. Docket No. 3. On January 11, 2017, Plaintiff submitted

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a renewed application, which the Court granted on January 17, 2017. Docket Nos. 4, 5. Also on

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January 17, 2017, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915, and

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dismissed the complaint with leave to amend. Docket No. 5. The Court found that the complaint

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attempted to state a claim under 42 U.S.C. § 1983, but failed to allege that Defendants were state

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actors or acted under color of law. Id. at 3. The Court provided Plaintiff an opportunity to cure that

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defect. Id. at 3-4.

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I.

DISCUSSION

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Plaintiff has now filed an amended complaint. Docket No. 7. Plaintiff appears to allege

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claims for breach of contract, breach of the implied covenant of good faith and fair dealing,

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negligence, and violations of Nevada Revised Statute (“NRS”) 686A.310. See id. at 3-8. For the

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purposes of the discussion below, the Court finds that Nevada law likely applies to these state law

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claims. See, e.g., Contreras v. Am. Family Mut. Ins. Co., 135 F. Supp. 3d 1208, 1218-19 (D. Nev.

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2015).

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The Court has a duty to ensure that it has subject matter jurisdiction over the dispute before

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it. See, e.g., Fed. R. Civ. P. 12(h)(3). Federal courts are courts of limited jurisdiction and possess

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only that power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489

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(2004). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary

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affirmatively appears.” Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d

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1221, 1225 (9th Cir. 1989). “The party asserting federal jurisdiction bears the burden of proving that

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the case is properly in federal court.” McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir.

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2001) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).

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Pursuant to 28 U.S.C. § 1331, federal courts have original jurisdiction over “all civil actions

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arising under the Constitution, laws, or treaties of the United States.” Cases “arise under” federal

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law either when federal law creates the cause of action or where the vindication of a right under state

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law necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez,

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277 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal question jurisdiction exists is based on the

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“well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a federal

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question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v.

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Williams, 482 U.S. 386, 392 (1987).

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The Court also has jurisdiction over civil cases in which there is diversity among the parties.

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“Jurisdiction founded on 28 U.S.C. § 1332 requires that the parties be in complete diversity and the

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amount in controversy exceeds $75,000.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d

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1089, 1090 (9th Cir. 2003). To establish diversity, the plaintiff must be a citizen of a different state

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than each defendant. See Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1095 (9th Cir. 2004).

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In this case, Plaintiff alleges that the Court has federal question jurisdiction under 28 U.S.C.

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§ 1331. Docket No. 7 at 3. Plaintiff is incorrect, however, as she asserts only state law claims. The

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Court does not have federal question jurisdiction over the instant case.

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Plaintiff fails to demonstrate that the Court has diversity jurisdiction. Plaintiff alleges that

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she resides in Clark County, Nevada, where she has obtained multiple Allstate policies. Id. at 2.

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Plaintiff further alleges that Defendant Baumann lives and works in Las Vegas, Nevada. Id.

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Plaintiff and Defendant Baumann are therefore both citizens of Nevada for diversity jurisdiction

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purposes. See, e.g., Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (citizenship

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is determined by domicile, which is “[a] person’s . . . permanent home, where she resides with the

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intention to remain or to which she intends to return”). As a result, the Court finds that diversity of

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citizenship is not present.1

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Plaintiff also fails to satisfy the amount in controversy requirement. In her prayer for relief,

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Plaintiff submits that she has sustained only approximately $20,000 in damages, an amount well

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below the statutory minimum, and for other damages “in a sum in excess of $10,000.” Docket No.

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7 at 5, 8. Plaintiff never alleges that she has sustained anywhere near $75,000 in damages.

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Therefore Plaintiff has also failed to meet the amount in controversy requirement for diversity

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jurisdiction.

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As Plaintiff has failed to demonstrate that this Court has subject matter jurisdiction, this
Court need not screen her claims.
II.

Accordingly, IT IS ORDERED that:
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CONCLUSION

The Clerk of Court shall file the complaint. The Complaint is DISMISSED, with
leave to amend.

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Plaintiff is granted leave to file a second amended complaint, if she believes she can

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cure the deficiencies noted above. If Plaintiff chooses to file a second amended

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complaint, she is advised that an amended complaint supersedes (replaces) the

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original complaint and, thus, the second amended complaint must be complete in

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itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

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1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original

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Plaintiff also does not provide sufficient information for the Court to determine Defendant
Allstate’s domicile, as she does not allege its place of incorporation. See Docket No. 7 at 2. See also
Hertz Corp. v. Friend, 559 U.S. 77 (2010).

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complaint is irrelevant; an amended pleading supersedes the original”); see also

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Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims

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dismissed with prejudice, a plaintiff is not required to reallege such claims in a

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subsequent amended complaint to preserve them for appeal). Plaintiff’s second

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amended complaint must contain all claims, defendants, and factual allegations that

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Plaintiff wishes to pursue in this lawsuit.

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3.

If Plaintiff chooses to file a second amended complaint curing the deficiencies, as

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outlined in this order, Plaintiff shall file the second amended complaint no later than

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March 20, 2017.

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4.

If Plaintiff chooses not to file a second amended complaint by the deadline, the

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undersigned will recommend dismissal of this case without prejudice. If Plaintiff

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timely files a second amended complaint, but the Court determines that it does not

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state any claims upon which relief may be granted, the undersigned will recommend

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dismissal of this case without prejudice.

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IT IS SO ORDERED.

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DATED: February 17, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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