Opinion
No. 3:04-CV-2717-L.
January 5, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
On December 27, 2004, the Court received a civil complaint from plaintiff. Plaintiff therein complains about a rib injury suffered when two employees of Wal Mart threw him to the ground. (Compl. at 1.) He alleges that the employees acted negligently. ( Id.) Contemporaneously with these findings, the Court has granted plaintiff permission to proceed in forma pauperis in this action. No process has been issued in this case.
II. JURISDICTION
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
In this instance, plaintiff asserts no federal statutory or constitutional basis for this suit against Wal Mart. Plaintiff's claims do not appear to arise under federal law. To the extent plaintiff has claims against defendant, such claims arise under state law. However, federal courts have no jurisdiction over such claims in the absence of diversity jurisdiction under 28 U.S.C. § 1332. Plaintiff provides no facts which indicate that the requirements for diversity jurisdiction exists. As the party seeking to invoke this Court's jurisdiction, plaintiff has the burden to show that diversity jurisdiction exists. See Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991). Plaintiff has not carried that burden.
Supplemental jurisdiction is unavailable because plaintiff has asserted no claim which provides an independent federal basis for jurisdiction.
In a civil cover sheet attached to his complaint, plaintiff asserts that federal jurisdiction is proper because of a "U.S. Government" plaintiff. That basis for federal jurisdiction is clearly inapplicable in this case.
Courts have "a continuing obligation to examine the basis for jurisdiction." See MCG, Inc. v. Great Western Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). The Court may sua sponte raise the jurisdictional issue at any time. Id.; Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66 (5th Cir. 1999). Fed.R.Civ.P. 12(h)(3) requires that federal courts dismiss an action "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter." Because it appears that the Court lacks subject matter jurisdiction, this action should be dismissed.
III. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court DISMISS plaintiff's complaint for lack of subject matter jurisdiction.