Opinion
NO 3-04-CV-0352-P
April 16, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a civil action brought by Plaintiff Oletha Nickelberry against her employer, Ingram Mico, Inc., and various insurance companies to recover workers' compensation and long term disability benefits due to a job-related injury. On February 13, 2004, plaintiff tendered a pro se complaint to the district clerk and filed an application to proceed in forma pauperis. Because the information provided by plaintiff in her pauper's affidavit indicates that she lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Upon further consideration, the court determines that this action should be dismissed for lack of subject matter jurisdiction.
II.
Plaintiff has been unemployed since April 2002 when she sustained a shoulder injury while moving boxes at work. Although her doctor has told plaintiff that she cannot return to work and needs surgery, plaintiff has been denied workers' compensation and long-term disability benefits. Plaintiff also complains that Ingram Micro has prevented her from receiving unemployment insurance benefits by not terminating her employment. By this suit, plaintiff seeks unspecified damages.A.
The court must initially examine the basis for federal subject matter jurisdiction. Unless otherwise provided by statute, federal district courts have jurisdiction over: (1) federal questions arising under the Constitution, laws, or treaties of the United States; and (2) civil actions where the amount in controversy exceeds $75,000, exclusive of interest and costs, and is between citizens of different states or foreign nations. See 28 U.S.C. § 1331 1332. A party seeking to invoke the jurisdiction of a federal court must prove that jurisdiction is proper. See Boudreau v. United States, 53 F.3d 81, 82 (5th Cir. 1995), cert. denied, 116 S.Ct. 771 (1996).
B.
Plaintiff alleges no federal constitutional or statutory basis for her claim against her employer or the insurance companies named as defendants. Therefore, the only basis for federal jurisdiction is diversity of citizenship. However, it is readily apparent from the face of the complaint that plaintiff and her employer, Ingram Micro, are both citizens of Texas. This defeats federal diversity jurisdiction. Consequently, this action must be dismissed. FED. R. CIV. P. 12(h)(3); see also Moore v. Zurich American Insurance Co., 2003 WL 21673532 at *1-2 (N.D. Tex. Jul. 15, 2003) (dismissing suit challenging denial of workers' compensation benefits brought by Texas resident against Texas insurance company).
RECOMMENDATION
Plaintiff's complaint should be summarily dismissed without prejudice for lack of subject matter jurisdiction.
The disposition of this case does not prevent plaintiff from refiling this action in Texas state court.