United States District Court, D. Arizona
REPORT AND RECOMMENDATION AND ORDER
S. Willett United States Magistrate Judge
HON. STEPHEN M. McNAMEE, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Application to Proceed in
District Court without Prepaying Fees or Costs (Doc. 2).
Plaintiff has not consented to the exercise of Magistrate
Judge Jurisdiction. The Court finds that Plaintiff does not
have sufficient means to pay the Court's fees and will
grant the Application (Doc. 2). Upon screening the Complaint
(Doc. 1) pursuant to 28 U.S.C. § 1915(e)(2), the Court
finds that the District Court does not have jurisdiction over
Plaintiff's cause of action. Therefore, the Magistrate
Judge will recommend that the District Judge dismiss the
Complaint (Doc. 1) without prejudice to enable Plaintiff to
pursue her action in State Court.
Subject Matter Jurisdiction
state courts, federal courts only have jurisdiction over a
limited number of cases, and those cases typically involve
either a controversy between citizens of different states
(“diversity jurisdiction”) or a question of
federal law (“federal question jurisdiction”).
See 28 U.S.C. §§ 1331, 1332. The United
States Supreme Court has stated that a federal court must not
disregard or evade the limits on its subject matter
jurisdiction. Owen Equip. & Erections Co. v.
Kroger, 437 U.S. 365, 374 (1978). Thus, a federal court
is obligated to inquire into its subject matter jurisdiction
in each case and to dismiss a case when subject matter
jurisdiction is lacking. See Valdez v. Allstate Ins.
Co., 372 F.3d 1115, 1116 (9th Cir. 2004); Fed.R.Civ.P.
Plaintiff's Complaint (Doc. 1)
states in her Complaint that both she and the Defendant are
residents of Maricopa County, Arizona. The events giving rise
to Plaintiff's cause of action all occurred in Arizona.
Plaintiff states a cause of action for medical negligence
against her treating plastic surgeon for damages arising from
reconstructive surgery post mastectomy. Plaintiff alleges
that “Dr. Rebecca fell below the standard of care,
” resulting in permanent, disfiguring injuries to the
Plaintiff, pain and suffering, loss of earnings past and
future, past and future medical expenses, mental anguish, and
damages in the amount of $960, 000. (Doc. 1 at 1, 2).
does not allege that she was treated by a federal medical
provider. No question of federal law is alleged to be
involved in Plaintiff's medical negligence claim. Nor has
diversity of citizenship been established. The United States
District Court has no subject matter jurisdiction in this
case. Plaintiff may refile her Complaint in Maricopa County
Superior Court for the State of Arizona. The undersigned will
recommend that the Court dismiss the Complaint without first
giving Plaintiff leave to amend as the deficiency in the
Complaint cannot be cured by the allegation of other facts.
See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.
2000) (explaining that “a district court should grant
leave to amend even if no request to amend the pleading was
made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts”)
(internal quotation marks and citation omitted).
on the foregoing, IT IS ORDERED granting
Plaintiff's Application to Proceed in District Court
without Prepaying Fees or Costs (Doc. 2).
IS FURTHER ORDERED recommending that Plaintiff's
Complaint (Doc. 1) be dismissed without prejudice for lack of
federal subject matter jurisdiction.
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Fed. R. App. P. 4(a)(1) should not be filed until
entry of the District Court's judgment. The parties shall
have fourteen days from the date of service of a copy of this
Report and Recommendation within which to file specific
written objections with the Court. See 28 U.S.C.
§ 636(b) (1); Fed.R.Civ.P. 6, 72. Thereafter, the
parties have fourteen days within which to file a response to
the objections. Failure to file timely objections to the
Report and Recommendation may result in the acceptance of the
Report and Recommendation by the District Court without
further review. Failure to file timely objections to any
factual determinations of the Magistrate Judge may be
considered a waiver of a party's right to appellate
review of the ...