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)

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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. § § § § § § § § 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 1/2 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. ___________________________________ MELINDA HARMON UNITED STATES DISTRICT JUDGE 2/2

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