Alaee et al v. Cox Communication Las Vegas et al

Filing 8

ORDER adopting #4 Report and Recommendation. IT IS FURTHER ORDERED that all pending motions are DENIED as moot and case is dismissed without prejudice. Signed by Judge Gloria M. Navarro on 5/9/2024. (Copies have been distributed pursuant to the NEF - MAM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FRED F. ALAEE, et. al.,

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Plaintiffs,
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vs.
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COX COMMUNICATIONS LAS VEGAS, et. )
al.,
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Defendants.
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Case No.: 2:24-cv-00581-GMN-EJY
ORDER ADOPTING
REPORT AND RECOMMENDATION

Pending before the Court is the Order and Report and Recommendation (“R&R”), (ECF

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No. 4), from United States Magistrate Judge Elayna Youchah, which recommends dismissing

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Plaintiff’s case for lack of jurisdiction and denying Plaintiffs’ applications to proceed in forma

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pauperis, (ECF Nos. 1, 3), as moot.

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A party may file specific written objections to the findings and recommendations of a

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United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);

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D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo

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determination of those portions to which objections are made if the Magistrate Judge’s findings

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and recommendations concern matters that may not be finally determined by a magistrate

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judge. D. Nev. R. IB 3-2(b). The Court may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. R.

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IB 3-2(b).

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Plaintiffs filed a timely objection to the Magistrate Judge’s R&R. (Objection, ECF No.

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7). The Court will therefore make a de novo determination as to whether this Court has subject

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matter jurisdiction over Plaintiffs’ claims. Federal courts are empowered to sua sponte review

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whether a case establishes subject matter jurisdiction and dismiss a case when such jurisdiction

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is lacking. Fed. R. Civ. P. 12(h)(3). Federal district courts “have original jurisdiction of all
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civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §

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1331; Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088–89 (9th Cir. 2002).

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Federal district courts also have original jurisdiction over civil actions in diversity cases “where

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the matter in controversy exceeds the sum or value of $75,000” and where the matter is

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between “citizens of different States.” 28 U.S.C. § 1332(a). “Section 1332 requires complete

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diversity of citizenship; each of the plaintiffs must be a citizen of a different state than each of

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the defendants.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001).

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First, the Court finds that no diversity jurisdiction exists. Plaintiffs’ Complaint alleges
that Plaintiffs, as well as Defendants Cox Communications, Robert Cree Hamilton, and Fox

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Canyon Estates Homeowner Association, are all Nevada residents. (Compl. at 1–2). Because

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each plaintiff is not a citizen of a different state than each defendant, the Court may not

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exercise diversity jurisdiction.

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Second, because Plaintiffs’ Complaint alleges only state causes of action, the Court

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lacks federal question jurisdiction over this case. The only mention of a federal statute in the

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Complaint is 21 U.S.C. § 1983, but the Defendants in this case are private parties. Section

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1983 does not allow claims to be brought against private parties who were not acting under

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color of law. West v. Atkins, 487 U.S. 42, 52 (1988). Plaintiffs must allege sufficient facts to

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show that the private person willfully participated in a joint action with government officials to

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deprive the plaintiffs of their constitutional rights. Taylor v. List, 880 F.2d 1040, 1048 (9th Cir.

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1989). Plaintiffs’ Objection suggests that additional federal questions have been raised, such as

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a violation of Title VI of the Civil Rights Act of 1964, but this claim was not brought in their

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Complaint. (See Objection at 3).

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The Court therefore ADOPTS the Report and Recommendation and dismisses Plaintiffs’

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Complaint without prejudice. Plaintiffs are advised that their Complaint would be best brought

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in a state court, such as the Eighth Judicial District Court, but that Plaintiffs may also refile
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their case in federal court if they have additional claims arising under federal law.

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Accordingly,

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IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 4), is
ACCEPTED and ADOPTED in full.

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IT IS FURTHER ORDERED that all pending motions are DENIED as moot.

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IT IS FURTHER ORDERED that this case is DISMISSED without prejudice.

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9 day of May, 2024.
Dated this ____

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___________________________________
Gloria M. Navarro, District Judge
United States District Court

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