Gabaldon v. Wal-Mart Supercenter

Filing 5

MEMORANDUM OPINION AND ORDER OF DISMISSAL by District Judge William P. Johnson. IT IS ORDERED that this case is DISMISSED without prejudice. IT IS ALSO ORDERED that 3 Plaintiff's Application to Proceed under 28 U.S.C. 1915 is DENIED as moot. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID A. GABALDON,
Plaintiff,
v.

No. 17cv136 WJ/CG

WAL-MART SUPERCENTER,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on Plaintiff’s Complaint, Doc. 1, filed January
30, 2017, and on his Application to Proceed in District Court Without Prepaying Fees or Costs,
Doc. 2, filed January 30, 2017 (“Application”). For the reasons stated below, the Court will
DISMISS this case without prejudice and DENY the Application as moot.
Plaintiff’s Complaint, which is difficult to understand, alleges that security at Wal-Mart
told Plaintiff to leave after Plaintiff refused to leave his backpack at the entrance. See Complaint
at 2. Plaintiff later returned to Wal-Mart for coffee and an employee “went out of her normal
job, to get the coffee for me.” Complaint at 2. On another day, Plaintiff went to the Wal-Mart
pharmacy to fill a prescription. The pharmacy did not have the medicine in stock so Plaintiff
returned the following day.

Wal-Mart was unable to obtain the prescribed medicine and

informed Plaintiff he could purchase similar medicine over-the-counter. Plaintiff did not have
money and the “pharmacy paid out pocket for med’s.” Complaint at 2. On yet another day, the
Wal-Mart pharmacy filled Plaintiff’s prescription for ibuprofen and Plaintiff asked two
employees “if they would sign paper stating that United Health Care would not cover the
HYDROCHLOROT because it was too soon.” Complaint at 2.

As the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden of
alleging facts that support jurisdiction. See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir.
2013) (“Since federal courts are courts of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal jurisdiction”). Plaintiff’s Complaint
does not contain “a short and plain statement of the grounds for the court’s jurisdiction” as
required by Rule 8(a)(1) of the Federal Rules of Civil Procedure.
The Court does not have diversity jurisdiction over this matter pursuant to
28 U.S.C. § 1332. See Evitt v. Durland, 243 F.3d 388 *2 (10th Cir. 2000) (“even if the parties do
not raise the question themselves, it is our duty to address the apparent lack of jurisdiction sua
sponte”) (quoting Tuck v. United Servs. Auto. Ass'n, 859 F.2d 842, 843 (10th Cir.1988). In order
to invoke diversity jurisdiction, “a party must show that complete diversity of citizenship exists
between the adverse parties and that the amount in controversy exceeds $75,000.” Symes v.
Harris, 472 F.3d 754, 758 (10th Cir.2006). “Complete diversity is lacking when any of the
plaintiffs has the same residency as even a single defendant.” Dutcher v. Matheson, 733 F.3d
980, 987 (10th Cir. 2013). Plaintiff resides in New Mexico. Although Plaintiff does not specify
the citizenship of Defendant Wal-Mart Supercenter, he gave an address for Defendant Wal-Mart
Supercenter in Albuquerque, New Mexico. Consequently, there is no properly alleged diversity
jurisdiction.
Plaintiff’s Complaint does not contain any allegations that show a basis for federal
question jurisdiction. A claim may be brought in federal court if the claim is one “arising under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. When determining
whether a claim arises under federal law, courts examine the well pleaded allegations of the
complaint and ignore potential defenses. See Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6

(2003). “A suit arises under the Constitution and laws of the United States only when the
plaintiff's statement of his own cause of action shows that it is based upon those laws or that
Constitution.” Id. (federal courts typically do not have jurisdiction under 28 U.S.C. § 1331 when
a plaintiffs' complaint does not assert any cause of action premised upon a violation of a federal
statute or the Constitution).
Although Plaintiff lists 14 “Charges,” some of which cite federal statutes or regulations at
the beginning of his Complaint, he does not explain how they demonstrate that the Court has
federal question jurisdiction. See Complaint at 1. Based on its review of those federal laws and
the factual allegations, the Court concludes it does not have federal question jurisdiction for the
following reasons.
Three of the cited statutes relate to crimes. See 18 U.S.C. § 1519, Destruction, alteration,
or falsification of records in Federal investigations and bankruptcy; 18 U.S.C. § 2332a, Use of
weapons of mass destruction; 15 U.S.C. § 2, Monopolizing trade a felony; penalty. “[A] private
citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”
Diamond v. Charles, 476 U.S. 54, 64 (1986).
There are no factual allegations in the Complaint that show the following statutes and
regulations cited by Plaintiff are relevant: 42 U.S.C. § 2302 (Penalties for negligent operations
and interfering with safe operation [of a vessel]); 2 C.F.R § 200.326 and 2 C.F.R § 200 Appendix
II (requiring certain provisions in non-federal entity’s contracts for federal awards).
Plaintiff lists seven “charges” but does not identify the complete citations for those laws.
See “§ 1706. Management of health care: other requirements;” “§ 240.15c1-2 Fraud and
misrepresentation;” “Discrimination;” “§ 414.422 Terms of contracts;” “§ 163.42 Obligated
service and breach of contract;” “Monopolizing or restraining trade and unduly enhancing prices

prohibited; remedy and procedure;” “CFR 308.111.” The Court will not comb the record or
make a party’s arguments for it. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir.
1998).
The Court will dismiss the Complaint without prejudice for lack of jurisdiction. See Fed.
R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action”); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th
Cir.2006) (“[D]ismissals for lack of jurisdiction should be without prejudice because the court,
having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition
on the merits of the underlying claims.”).
IT IS ORDERED that this case is DISMISSED without prejudice.
IT IS ALSO ORDERED that Plaintiff’s Application to Proceed in District Court
Without Prepaying Fees or Costs, Doc. 2, filed January 30, 2017, is DENIED as moot.

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UNITED STATES DISTRICT JUDGE