Gayle v. Dwoskin
Filing
9
MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 8/15/11. (kld)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
RUBY GAYLE,
Plaintiff,
v.
ROBERT P. DWOSKIN,
Defendant.
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Civil Action No. 5:11cv00078
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) By: Hon. Michael F. Urbanski
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United States District Judge
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MEMORANDUM OPINION
Plaintiff Ruby Gayle originally filed this action in the United States District Court for the
Eastern District of Virginia, Richmond Division on June 21, 2011. However, venue was not
proper and by order dated August 8, 2011 the case was transferred to the United States District
Court for the Western District of Virginia, Harrisonburg Division. The court granted plaintiff’s
Application to Proceed in Forma Pauperis on August 9, 2011. However, because the court lacks
jurisdiction to hear plaintiff’s claim, her case is hereby DISMISSED WITHOUT
PREJUDICE.
Federal subject matter jurisdiction is created either by a claim arising “under the
Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, or complete diversity of
citizenship between adverse parties and an amount in controversy exceeding $75,000.00.
28 U.S.C § 1332. A court may consider matters of subject matter jurisdiction sua sponte. Fed.
R. Civ. P. 12(h)(3). After considering the plaintiff's complaint, the court determines that it has
neither federal question jurisdiction nor diversity of citizenship jurisdiction. Therefore, the court
must dismiss this action.
I.
Federal Question Jurisdiction
Federal district courts have original jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The Supreme Court has
stated that a case arises under federal law within the meaning of § 1331 “if 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.” Empire
Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 689-90 (2006) (quoting Franchise Tax
Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-28, (1983)).
Plaintiff’s complaint makes the following claims regarding federal jurisdiction:
The Jurisdiction of this case derived from the original jurisdiction
an action that is pursuant to 42 U.S.C. 1983, 5 and the Fourteenth
Amendment of the Constitution of the United States and raises
issues of original Federal Jurisdiction but ancillary State claims are
also raised.
(Dkt. 8, p. 1.) However, plaintiff has not met her burden of establishing that federal subject
matter jurisdiction exists. Plaintiff’s complaint alleges that an attorney committed malpractice
by failing to successfully sue on her behalf in a prior § 1983 action, including failing to comply
with a scheduling order and failing to timely communicate with the plaintiff, which resulted in
the case being dismissed without prejudice. Although a § 1983 action would present a federal
question, a suit for malpractice with respect to a § 1983 claim is a state law claim. Therefore, the
court finds that it does not have jurisdiction to hear this case under 28 U.S.C. § 1331.
II.
Diversity of Citizenship Jurisdiction
In order for the Court to have jurisdiction pursuant to 28 U.S.C. § 1332, the plaintiffs and
the defendants must be citizens of different states. See 28 U.S.C. § 1332(a)(1). Plaintiff’s
complaint makes clear that both she and the defendant are citizens of Virginia. Plaintiff states
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that she is a resident of Waynesboro, Virginia and she lists the defendant’s address as
Charlottesville, Virginia. Thus, the court does not have diversity of citizenship jurisdiction under
28 U.S.C. § 1332.
Therefore, because the court lacks jurisdiction to hear plaintiff's claim, her case is hereby
DISMISSED WITHOUT PREJUDICE. A claim of legal malpractice between parties who are
both citizens of Virginia is a state common law cause of action which must be heard in state
court.
The Clerk is directed to send a copy of this Memorandum Opinion and accompanying
Order to the plaintiff.
Entered: August 15, 2011
/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge
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