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McGurty v. Rebecca

United States District Court, D. Arizona

July 9, 2018

Anne M McGurty, Plaintiff,
v.
Alanna M Rebecca, et al., Defendants.

          REPORT AND RECOMMENDATION AND ORDER

          Eileen S. Willett United States Magistrate Judge

         TO THE HON. STEPHEN M. McNAMEE, UNITED STATES DISTRICT JUDGE

         Pending 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.

         I. DISCUSSION

         A. Subject Matter Jurisdiction

         Unlike 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. 12(h)(3).

         B. Plaintiff's Complaint (Doc. 1)

         Plaintiff 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).

         Plaintiff 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).

         II. CONCLUSION

         Based on the foregoing, IT IS ORDERED granting Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs (Doc. 2).

         IT IS FURTHER ORDERED recommending that Plaintiff's Complaint (Doc. 1) be dismissed without prejudice for lack of federal subject matter jurisdiction.

         This 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. ยง 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 ...


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