Quiney v. Pilot/Flying J Truck Stop

Filing 6

ORDER that Plaintiff has until January 5, 2018 to file a Second Amended Complaint showing the residence of Swift Transportation. FURTHER ORDERED that if a Second Amended Complaint is later filed, the Clerk of the Court is directed NOT to issue summons on the Second Amended Complaint Signed by Magistrate Judge Cam Ferenbach on 12/5/2017. (Copies have been distributed pursuant to the NEF - MMM)

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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DWAYNE R. QUINEY,

Case No. 2:17-cv-02691-GMN-VCF

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Plaintiff,
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ORDER

vs.
SWIFT TRANSPORTATION, INC.,

AMENDED COMPLAINT (EFC NO. 5)

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Defendant.

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Before the Court is Plaintiff Dwayne Quiney’s amended complaint. (ECF No. 5). The Court
hereby orders Quiney to submit a second amended complaint to address issues as discussed below.

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DISCUSSION

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This case centers around an allegation that Swift Transportation lied about Quiney failing an
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alcohol/drug test while he worked for Swift Transportation. (ECF No. 4 at 2). On November 2, 2017, the
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Court ordered that Quiney had until December 8, 2017 to file an amended complaint (1) clarifying who
the Defendants are in this case, (2) providing a short and plain statement of the grounds of the Court’s
jurisdiction, and (3) giving factual details of the alleged defamation. (ECF No. 3 at 3).

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On November 22, 2017, Quiney filed an amended complaint. (ECF No. 5). The amended

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complaint clarifies that the Defendant is Swift Transportation (Id. at 1) and gives more factual details of

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the alleged defamation (Id. at 2). However, the amended complaint fails to address the grounds for this

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Court’s jurisdiction.

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Federal courts have limited jurisdiction and are only able to hear cases authorized by the
Constitution and Congress. Polo v. Innoventions Int'l, LLC, 833 F.3d 1193, 1195-96 (9th Cir. 2016). The

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general bases for federal jurisdiction are (1) the action arises under federal law or that (2) all plaintiffs are
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diverse in citizenship from all defendants and the amount in controversy exceeds $75,000. See 28 U.S.C.
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§§ 1331, 1332.

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The amended complaint does not show that this Court has jurisdiction based on a federal question.

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The amended complaint states that is it a civil rights complaint pursuant to 42 U.S.C. §1983. (ECF No. 5

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at 1). This is incorrect. “To sustain an action under [42 U.S.C.] § 1983, a plaintiff must show (1) that the

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conduct complained of was committed by a person acting under color of state law; and (2) that the conduct

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deprived the plaintiff of a constitutional right.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th

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Cir. 1988). Quiney alleges that Swift Transportation, a private entity, lied about Quiney. (ECF No. 5 at

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2-4). If false statements are “made about [plaintiff] by a private individual, he would have nothing more

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than a claim for defamation under state law.” Paul v. Davis, 424 U.S. 693, 698 (1976). As previously
explained in the Court’s November 2, 2017 Order, “[t]hough Plaintiff cites 28 U.S.C. § 4101 (ECF No. 1-

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1 at 1), the statute merely provides a definition of defamation” relating to foreign judgments. (ECF No. 3
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at 2). 28 U.S.C. § 4101 does not apply in this case. Because defamation is a state law claim, the case
does not pose a federal question.

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The amended complaint also does not show that this Court has diversity jurisdiction. The place to

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identify the residence of the Defendant is left blank. (ECF No. 5 at 2). Without information regarding

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the residence of the Defendant, this Court does not have diversity jurisdiction over this case.

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Accordingly, and for good cause shown,

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IT IS ORDERED that Plaintiff has until January 5, 2018 to file a Second Amended Complaint

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showing the residence of Swift Transportation. Failure to timely file a Second Amended Complaint that
addresses the deficiencies noted in this Order may result in a recommendation for dismissal with prejudice.

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IT IS FURTHER ORDERED that if a Second Amended Complaint is later filed, the Clerk of the
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Court is directed NOT to issue summons on the Second Amended Complaint. The Court will issue a
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screening order on the Second Amended Complaint and address the issuance of Summons at that time, if
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applicable. See 28 U.S.C. § 1915(e)(2).

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NOTICE

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Under Local Rule IB 3-2, any objection to this Order must be in writing and filed with the Clerk

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of the Court within 14 days. The Supreme Court has held that the courts of appeal may determine that an

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appeal has been waived due to the failure to file objections within the specified time. (See Thomas v. Arn,

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474 U.S. 140, 142 (1985)). This circuit has also held that (1) failure to file objections within the specified
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time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the
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District Court’s order and/or appeal factual issues from the order of the District Court. (See Martinez v.
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Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th
Cir. 1983)).

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Pursuant to LSR 2-2, the Plaintiff must immediately file written notification with the court of any

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change of address. The notification must include proof of service upon each opposing party or the party’s

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attorney. Failure to comply with this Rule may result in dismissal of the action. (See LSR 2-2).

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IT IS SO ORDERED.
DATED this 5th day of December, 2017.

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_________________________

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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