Baker v. Penney OPCO LLC et al

Filing 11

ORDER. IT IS HEREBY ORDERED that the R&R, (ECF No. 7 ), is REJECTED. IT IS FURTHER ORDERED that because Case No. 2:25-cv-00230-RFB-MDC was consolidated into this action, Plaintiff shall have 21 days to file a Second Amended Complaint to serve as th e operative complaint in this consolidated action. Upon the filing of Plaintiff's Second Amended Complaint, the Court REFERS the Magistrate Judge to conduct a screening of it. Amended Complaint deadline: 3/26/2025. Signed by Judge Gloria M. Navarro on 3/5/2025. (Copies have been distributed pursuant to the NEF - RJDG)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HEZEKIAH ESAU BAKER,

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vs.

Case No.: 2:24-cv-02084-GMN-EJY

Plaintiff,

ORDER REJECTING R&R

OPCO LLC, d/b/a JC PENNEY, et al.,
Defendants.

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Pending before the Court is the Report and Recommendation (“R&R”) by Magistrate

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Judge Youchah, (ECF No. 7), recommending that this matter be dismissed without prejudice

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because Plaintiff’s Amended Complaint (ECF No. 6) fails to state a basis for federal

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jurisdiction. Plaintiff Hezekiah Esau Baker filed an Affirmation, (ECF No. 8), which the Court

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construes as an Objection. For the reasons discussed below, the Court REJECTS Magistrate

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Judge Youchah’s R&R.

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I.

BACKGROUND

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This case arises from Plaintiff’s detention in a retail store owned and operated by

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Defendant. In October 2024, Plaintiff was detained for suspected larceny when an employee at

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a JCPenney owned and operated by Defendant allegedly failed to remove a security tag from an

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item he purchased. (See generally Second Amend. Compl. (“SAC”), ECF No. 6). Shortly

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thereafter, Plaintiff filed his first lawsuit, Case No. 24-cv-02084-GMN-EJY, and Magistrate

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Judge Youchah entered the pending R&R recommending that the case be dismissed without

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prejudice. Plaintiff subsequently filed an Affirmation objecting to dismissal. (See generally,

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Affirmation, ECF No. 8). While the R&R was pending, Plaintiff filed another lawsuit, Case

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No. 2:25-cv-00230-RFB-MDC, in the District of Nevada alleging identical allegations as his

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first lawsuit. Because of the similarities between the two cases, Case No. 2:25-cv-00230-RFBPage 1 of 4

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MDC was transferred to this Court and they were consolidated into one action. (See generally

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Consolidation Order, ECF No. 10). The Court now makes a de novo determination of the

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pending R&R.

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II.

LEGAL STANDARD
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. Id. The Court may accept, reject,

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or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge.

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28 U.S.C. § 636(b)(1); D. Nev. R. IB 3-2(b).

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III.

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DISCUSSION
Magistrate Judge Youchah screened Plaintiff’s FAC, (ECF No. 6), and recommends that

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this matter be dismissed without prejudice because Plaintiff’s FAC fails to state a basis for

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federal jurisdiction. (See generally R&R, ECF No. 7). Federal courts, unlike state courts, are

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courts of limited jurisdiction which can only adjudicate those cases which the United States

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Constitution or Congress authorize them to adjudicate. Kokkonen v. Guardian Life Ins. Co., 511

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U.S. 375, 377 (1994). Congress has only authorized federal jurisdiction in cases which present

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a federal question as set forth by 28 U.S.C. § 1331 or where there is complete diversity of

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citizenship and the amount in controversy exceeds $75,000 as set forth by 28 U.S.C. § 1332. A

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party seeking to invoke federal subject matter jurisdiction has the burden of establishing that

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jurisdiction exists. Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1282

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(9th Cir. 1977). A court may raise the question of subject-matter jurisdiction sua sponte, and it

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must dismiss a case if it determines it lacks subject-matter jurisdiction. McCauley v. Ford

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Motor Co., 264 F.3d 952, 957 (9th Cir. 2001); Fed. R. Civ. P. 12(h)(3).

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Page 2 of 4

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The Magistrate Judge correctly explains that “Plaintiff’s claims, reasonably interpreted

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as negligence by [Defendant] and either intentional or negligent infliction of emotional distress

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arise under Nevada state law, not federal law.” (R&R 2:19–20); see Crain v. Petrushkin, Case

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No. 2:13-cv-1732-JCM (CWH), 2014 WL 6680600, at *3 (D. Nev. Nov. 25, 2014)

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(“Intentional infliction of emotional distress is a state law claim.”); Ybarra v. Bastian, 647 F.2d

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891, 892 (9th Cir. 1981) (explaining that negligence is a state law claim). Thus, the Magistrate

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Judge is correct that the Court does not have federal question jurisdiction.
But the Magistrate Judge does not address whether the Court has diversity jurisdiction.

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In Plaintiff’s Affirmation, he argues that the Court has diversity jurisdiction because the parties

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are diverse and the amount in controversy exceeds $75,000 therefore allowing his state law

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claim to move forward. Indeed, Plaintiff’s FAC alleges that he is a citizen of Nevada, and that

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Defendant is a citizen of Texas so complete diversity exists. (FAC at 2). Moreover, Plaintiff

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alleges over $800,000 in damages for the described injury of “humiliation, . . . emotional

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distress, . . . intense feelings of embarrassment, shame, anxiety, and depression.” (Id. at 3).

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Thus, at this stage of the proceedings, it is not apparent that the Court lacks subject matter

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jurisdiction over the case.

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IV.

CONCLUSION

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IT IS HEREBY ORDERED that the R&R, (ECF No. 7), is REJECTED.

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IT IS FURTHER ORDERED that because Case No. 2:25-cv-00230-RFB-MDC was

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consolidated into this action, Plaintiff shall have 21 days to file a Second Amended Complaint

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to serve as the operative complaint in this consolidated action.

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Upon the filing of Plaintiff’s Second Amended Complaint, the Court REFERS the
Magistrate Judge to conduct a screening of it.
DATED this _____
day of March, 2025.
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___________________________________
Gloria M. Navarro, District Judge
United States District Court

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