Gagliano, et al v. Intuitive Surgical, Inc.

Filing 4

Memorandum of Opinion and Order For the reasons set forth herein, the Court hereby dismisses Plaintiffs' Complaint without prejudice for lackof subject-matter jurisdiction. Judge Benita Y. Pearson on 9/30/2015. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DANIEL GAGLIANO, et al.,
Plaintiffs,
v.
INTUITIVE SURGICAL, INC.,
Defendant.

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CASE NO. 4:15cv853

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER

Pro se Plaintiffs Daniel Gagliano and Concetta Gagliano filed this tort action against
Intuitive Surgical, Inc. In the complaint, Plaintiffs allege that the Defendant manufactures and
distributes the DaVinci Surgical System which is responsible for injuries sustained by Daniel
Gagliano. They seek monetary relief in excess of Twenty-Five Thousand Dollars ($25,000.00)
for Daniel’s injuries and for Concetta’s loss of consortium.
Plaintiffs’ complaint is very brief and contains few factual allegations. Aside from
asserting that Defendant manufactures and distributes the DaVinci Surgical System, they allege
only that:
Intuitive Surgical Inc. is directly responsible for the permanent injuries and loss
including but not limited to requiring additional surgical procedures, permanent
damage to his colon and abdomen, severe pain and suffering, disfigurement,
significant medical expenses and significant lost wages and earning capacity.
Such damages will continue into the future.
Intuitive Surgical, Inc. was negligent and reckless in their conduct, failure to warn,
deceptive advertising campaign and training the personnel in the use of the robot.
ECF No. 1 at 2–3.

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While pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court may dismiss
an action sua sponte if the district court clearly lacks jurisdiction over the matters presented in
the complaint. On August 21, 2015, Plaintiffs were advised by the Court that their complaint, as
written, fails to establish a basis for federal court jurisdiction, and fails to state a claim upon
which relief may be granted. They were given thirty (30) days from August 21, 2015 to amend
their complaint to set forth a basis for federal court jurisdiction, and to assert a cognizable claim
for relief. ECF No. 3. The Court notified them that if a legally sufficient amended complaint
was not filed within the time permitted, this action would be dismissed without prejudice. Catz
v. Chalker, 142 F.3d 279, 285 (6th Cir. 1998); Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir.
1983). In addition, Plaintiffs were reminded that they are responsible for serving Defendant with
the complaint and amended complaint in accordance with Federal Civil Procedure Rule 4.
Although more than thirty days have passed since the Court issued that Order, Plaintiffs have not
filed an amended complaint.
Federal courts are courts of limited jurisdiction and, unlike state trial courts, they do not
have general jurisdiction to review all questions of law. See Ohio ex rel. Skaggs v. Brunner, 549
F.3d 468, 474 (6th Cir. 2008). Instead, they have only the authority to decide cases that the
Constitution and Congress have empowered them to resolve. Id. Consequently, “[i]t is to be
presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994) (internal citation omitted).

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(4:15cv853)
Generally speaking, the Constitution and Congress have given federal courts authority to
hear a case only when the case raises a federal question, or when diversity of citizenship exists
between the parties. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The first type of
jurisdiction, federal question jurisdiction, arises where a “well-pleaded complaint establishes
either that federal law creates the cause of action or that the Plaintiff’s right to relief necessarily
depends on resolution of a substantial question of federal law.” Franchise Tax Bd. v.
Construction Laborers Vacation Trust, 463 U.S. 1, 27–28 (1983).
The second type of jurisdiction, diversity jurisdiction, is applicable to cases of sufficient
value between “citizens of different states.” 28 U.S.C. § 1332(a)(1). To establish diversity of
citizenship, Plaintiffs must establish that “no plaintiff and no defendant are citizens of the same
state.” Jerome–Duncan, Inc. v. Auto–By–Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999). The
citizenship of a natural person equates to his domicile. Von Dunser v. Aronoff, 915 F.2d 1071,
1072 (6th Cir. 1990). A corporation is a citizen of every state in which it is incorporated and the
state where it has its principal place of business. Safeco Ins. Co. v. City of White House, Tenn.,
36 F.3d 540, 544 (6th Cir. 1994). Plaintiffs must also plead facts reasonably suggesting the
amount in controversy exceeds $75,000.00 exclusive of interest and costs. 28 U.S.C. § 1332.
Plaintiffs assert only state law tort claims. Federal jurisdiction cannot be based on the
presence of a federal question. The only other plausible basis for federal jurisdiction is diversity
of citizenship. Plaintiffs indicate they are Ohio residents. Intuitive Surgical, Inc. is a Delaware
corporation with its principal place of business in California. Diversity of citizenship is
complete. However, Plaintiffs did not establish the amount in controversy. They seek an amount

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(4:15cv853)
in excess of $25,000.00 in damages to fully compensate their claims. This, however, is a legallyinsufficient allegation and, as the Court warned (ECF No. 3), Plaintiffs risked dismissal without
prejudice if they failed to cure the jurisdictional defect. Catz, 142 F.3d at 285. Having failed to
do so, Plaintiffs are left with a non-waivable, fatal defect to subject-matter jurisdiction. Aronoff,
915 F.2d at 1074.
Accordingly, the Court hereby dismisses Plaintiffs’ complaint without prejudice for lack
of subject-matter jurisdiction.

IT IS SO ORDERED.

September 30, 2015
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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