Celestine v. Nieves

Filing 36

OPINION AND ORDER granting 7 MOTION to Dismiss Under FRCP 12b, Answer and Jury Demand (Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDWARD PAUL CELESTINE JR,
Plaintiff,
VS.
AXEL NIEVES,
Defendant.

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April 13, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 4:15-CV-2811

ORDER AND OPINION
Before the Court is Defendant Axel Nieves’ Motion to Dismiss. (Document No. 7).
Plaintiff has filed a Response. (Document No. 12). Having considered these filings, the facts in
the record, and the applicable law, the Court concludes Defendant’s Motion (Document No. 7)
should be granted.
A federal court has subject matter jurisdiction over cases “arising under” the
Constitution, laws, or treaties of the United States (federal question jurisdiction), or in cases
where the matter in controversy exceeds $75,000, exclusive of interest and costs, and diversity of
citizenship exists between the parties (diversity jurisdiction). 28 U.S.C. §§ 1331, 1332. Federal
courts are courts of limited jurisdiction and must have statutory or constitutional power to
adjudicate a claim. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Absent
jurisdiction conferred by statute or the Constitution, they lack the power to adjudicate claims and
must dismiss an action if subject matter jurisdiction is lacking. Home Builders Ass’n, Inc. v. City
of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The burden of establishing subject matter
jurisdiction rests upon the party asserting it. Kokkonen, 511 U.S. at 377.
Plaintiff does not allege federal question jurisdiction in this case (and any negligence
alleged by Plaintiff is not a federal claim). Furthermore, Plaintiff and Defendant both reside in
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Texas, so diversity jurisdiction is inappropriate. (Document No. 1-2 at 1); 28 U.S.C. 1332.
Therefore, this Court does not have subject matter jurisdiction. It is hereby
ORDERED that Defendant’s Motion (Document No. 12) is GRANTED and Plaintiff’s
claims are DISMISSED without prejudice.
SIGNED at Houston, Texas, this 13th day of April, 2016.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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