Opinion
2:21-cv-01836-JAD-NJK
01-20-2022
GERMANI MARIE MADDEN (CANNADY), Plaintiffs, v. ANNA D. JUAREZ, et al., Defendant(s).
REPORT AND RECOMMENDATION
Nancy J. Kopp, United States Magistrate Judge.
The Court has a duty to ensure that it has subject matter jurisdiction over the dispute before it, an issue it may raise at any time during the proceedings. See, e.g., Fed.R.Civ.P. 12(h)(3). Federal courts are courts of limited jurisdiction and possess only that power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). “The party asserting federal jurisdiction bears the burden of proving that the case is properly in federal court.” McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
On December 10, 2021, the Court ordered Plaintiff to show cause why this case should not be dismissed for lack of subject matter jurisdiction:
Plaintiff's complaint is bare bones, but appears to assert tort claims arising out of a security incident at a building owned by a private entity. See Docket No. 1-1 (identifying the Molasky Corporate Center). The complaint indicates that this case involves a federal question because Plaintiff alleges that a security guard stated that the office “was a federal building.” Id. at 3. Plaintiff is suing nongovernmental entities, however, and vague reference to the claim arising from action on a “federal property” is not sufficient to establish federal question subject matter jurisdiction. See Jones v. Queen City Corp., 2016 WL 1572077, at *5-6 (E.D. La. Apr. 18, 2016).1
Docket No. 7 at 1-2. The deadline to respond to the order to show cause was January 7, 2022. See Id. at 2. Plaintiff has not responded.
Having failed to establish that the Court has subject matter jurisdiction over this case, the undersigned RECOMMENDS that the case be DISMISSED without prejudice to being refiled in state court.
Apart from the jurisdictional issue, Plaintiff has not paid the filing fee or filed an application to proceed in forma pauperis. On December 10, 2021, the Court ordered (for the second time) that Plaintiff must pay that fee or file an application to proceed in forma pauperis by January 7, 2022. Docket No. 6. The Court warned that failure to do so “will result in a recommendation that the case be dismissed.” Id. Plaintiff did not comply. Plaintiff's case is also subject to dismissal on this ground. E.g., Zammit v. Solomons, 2021 WL 3634988, at *1 (D. Nev. Aug. 17, 2021).
NOTICE
This report and recommendation is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation must file a written objection supported by points and authorities within fourteen days of being served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991). 2