Opinion
Case No. 19-cv-01025-WHO
06-27-2019
ERIK ESTAVILLO, Plaintiff, v. BEHAVIOUR INTERACTIVE, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATIONA ND DISMISSING CASE
Re: Dkt. No. 13
Plaintiff Erik Estavillo filed his original complaint and motion for leave to proceed in forma pauperis ("IFP") on February 25, 2019. [Dkt. Nos. 1, 2]. Estavillo initially sought relief against Epic Games, Behaviour Interactive, and Starbreeze Studios over various grievances related to their video games. See Complaint. Pursuant to 28 U.S.C. § 1915, the Hon. Susan Van Keulen denied the IFP application without prejudice and after conducting an initial screening review of the complaint, found that it failed to establish subject matter jurisdiction or state a claim upon which relief may be granted. [Dkt. No. 5]. Estavillo was instructed to submit an amended IFP application and an amended complaint. Id.
On March 26, 2019, Estavillo filed his amended IFP application and complaint. [Dkt. Nos. 7, 8]. In the amended complaint, Estavillo abandoned his claims against defendants Epic Games and Starbreeze Studios. See Amended Complaint. Instead, he sought relief against defendants Behaviour Interactive and Value Corporation under California law and the Americans with Disabilities Act ("ADA"). Id. Judge Van Keulen issued a second screening order that granted the amended IFP application but concluded that the amended complaint failed to establish a basis for federal subject matter jurisdiction. [Dkt. No. 11]. Estavillo was ordered to file a second amended complaint by May 13, 2019. Id. To date, he has not done so.
Because Estavillo has not consented to the jurisdiction of a magistrate judge, and defendants have not been served and therefore have not made an election regarding the jurisdiction of a magistrate judge, Judge Van Keulen ordered the clerk of court to reassign this case to a district judge. Report and Recommendation to Dismiss Plaintiff's Complaint pursuant to 28 U.S.C. § 1915 ("R&R Order") [Dkt. No. 13]. On May 31, 2019, this case was reassigned to me. [Dkt. No. 15]. Objections were due by June 13, 2019. As of the date of this order, no objections have been filed. I now consider Judge Van Keulen's report and recommendation pursuant to 28 U.S.C. § 1915.
Judge Van Keulen held that Estavillo's amended complaint fails to establish federal subject matter jurisdiction. R&R Order at 4-8. She finds that there is no federal question jurisdiction because under the ADA, a claim against a website must be connected to a physical place and the amended complaint fails to allege that the digital store at issue connects to any such place. Id. at 4-5. She points out that it is clear to a legal certainty that the claims in the amended complaint do not meet the jurisdictional minimum to establish diversity jurisdiction. Id. at 5-7. I agree with her conclusions.
Judge Van Keulen recommends that I dismiss the amended complaint with prejudice because Estavillo has been given two opportunities to establish subject matter jurisdiction and that he has chosen not to file a second amended complaint. Id. at 7-8. As the judge to whom this case was assigned, I find Judge Van Keulen's report thorough and correct; I adopt it in every respect. Accordingly the complaint is dismissed with prejudice.
IT IS SO ORDERED. Dated: June 27, 2019
/s/_________
William H. Orrick
United States District Judge