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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 DONNELLE PETTIGREW, 8 9 10 Plaintiff(s), vs. TOM WILSON, et al., 11 Defendant(s). ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-03012-APG-NJK ORDER 12 13 Plaintiff is proceeding in this action pro se and requested authority pursuant to 28 U.S.C. 14 § 1915 to proceed in forma pauperis. Docket No. 1. On January 9, 2017, the Court denied 15 Plaintiff’s application without prejudice. Docket No. 3. On January 11, 2017, Plaintiff submitted 16 a renewed application, which the Court granted on January 17, 2017. Docket Nos. 4, 5. Also on 17 January 17, 2017, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915, and 18 dismissed the complaint with leave to amend. Docket No. 5. The Court found that the complaint 19 attempted to state a claim under 42 U.S.C. § 1983, but failed to allege that Defendants were state 20 actors or acted under color of law. Id. at 3. The Court provided Plaintiff an opportunity to cure that 21 defect. Id. at 3-4. 22 I. DISCUSSION 23 Plaintiff has now filed an amended complaint. Docket No. 7. Plaintiff appears to allege 24 claims for breach of contract, breach of the implied covenant of good faith and fair dealing, 25 negligence, and violations of Nevada Revised Statute (“NRS”) 686A.310. See id. at 3-8. For the 26 purposes of the discussion below, the Court finds that Nevada law likely applies to these state law 27 claims. See, e.g., Contreras v. Am. Family Mut. Ins. Co., 135 F. Supp. 3d 1208, 1218-19 (D. Nev. 28 2015). 1 The Court has a duty to ensure that it has subject matter jurisdiction over the dispute before 2 it. See, e.g., Fed. R. Civ. P. 12(h)(3). Federal courts are courts of limited jurisdiction and possess 3 only that power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 4 (2004). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary 5 affirmatively appears.” Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 6 1221, 1225 (9th Cir. 1989). “The party asserting federal jurisdiction bears the burden of proving that 7 the case is properly in federal court.” McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 8 2001) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). 9 Pursuant to 28 U.S.C. § 1331, federal courts have original jurisdiction over “all civil actions 10 arising under the Constitution, laws, or treaties of the United States.” Cases “arise under” federal 11 law either when federal law creates the cause of action or where the vindication of a right under state 12 law necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 13 277 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal question jurisdiction exists is based on the 14 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a federal 15 question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. 16 Williams, 482 U.S. 386, 392 (1987). 17 The Court also has jurisdiction over civil cases in which there is diversity among the parties. 18 “Jurisdiction founded on 28 U.S.C. § 1332 requires that the parties be in complete diversity and the 19 amount in controversy exceeds $75,000.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 20 1089, 1090 (9th Cir. 2003). To establish diversity, the plaintiff must be a citizen of a different state 21 than each defendant. See Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1095 (9th Cir. 2004). 22 In this case, Plaintiff alleges that the Court has federal question jurisdiction under 28 U.S.C. 23 § 1331. Docket No. 7 at 3. Plaintiff is incorrect, however, as she asserts only state law claims. The 24 Court does not have federal question jurisdiction over the instant case. 25 Plaintiff fails to demonstrate that the Court has diversity jurisdiction. Plaintiff alleges that 26 she resides in Clark County, Nevada, where she has obtained multiple Allstate policies. Id. at 2. 27 28 2 1 Plaintiff further alleges that Defendant Baumann lives and works in Las Vegas, Nevada. Id. 2 Plaintiff and Defendant Baumann are therefore both citizens of Nevada for diversity jurisdiction 3 purposes. See, e.g., Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (citizenship 4 is determined by domicile, which is “[a] person’s . . . permanent home, where she resides with the 5 intention to remain or to which she intends to return”). As a result, the Court finds that diversity of 6 citizenship is not present.1 7 Plaintiff also fails to satisfy the amount in controversy requirement. In her prayer for relief, 8 Plaintiff submits that she has sustained only approximately $20,000 in damages, an amount well 9 below the statutory minimum, and for other damages “in a sum in excess of $10,000.” Docket No. 10 7 at 5, 8. Plaintiff never alleges that she has sustained anywhere near $75,000 in damages. 11 Therefore Plaintiff has also failed to meet the amount in controversy requirement for diversity 12 jurisdiction. 13 14 15 16 17 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: 1. 18 19 CONCLUSION The Clerk of Court shall file the complaint. The Complaint is DISMISSED, with leave to amend. 2. Plaintiff is granted leave to file a second amended complaint, if she believes she can 20 cure the deficiencies noted above. If Plaintiff chooses to file a second amended 21 complaint, she is advised that an amended complaint supersedes (replaces) the 22 original complaint and, thus, the second amended complaint must be complete in 23 itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 24 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original 25 1 27 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). 28 3 26 1 complaint is irrelevant; an amended pleading supersedes the original”); see also 2 Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims 3 dismissed with prejudice, a plaintiff is not required to reallege such claims in a 4 subsequent amended complaint to preserve them for appeal). Plaintiff’s second 5 amended complaint must contain all claims, defendants, and factual allegations that 6 Plaintiff wishes to pursue in this lawsuit. 7 3. If Plaintiff chooses to file a second amended complaint curing the deficiencies, as 8 outlined in this order, Plaintiff shall file the second amended complaint no later than 9 March 20, 2017. 10 4. If Plaintiff chooses not to file a second amended complaint by the deadline, the 11 undersigned will recommend dismissal of this case without prejudice. If Plaintiff 12 timely files a second amended complaint, but the Court determines that it does not 13 state any claims upon which relief may be granted, the undersigned will recommend 14 dismissal of this case without prejudice. 15 IT IS SO ORDERED. 16 DATED: February 17, 2017 17 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 4

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