Hastings v. Grundy

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 John Hastings, No. CV-19-4645-PHX-DGC 10 Plaintiff, ORDER 11 vs. 12 Elvin Garry Grundy, III; and The Grundy Law Firm, PLLC, — 13 — Defendants. — 14 — — 15 — 16 On May 12, 2020, the Court ordered Plaintiff to show cause why this case should 17 not be dismissed for lack of federal subject matter jurisdiction. Doc. 17. Plaintiff was 18 required to file a response to the Order to Show Cause by June 5, 2020. Id. at 1, 5. The 19 Court warned Plaintiff that his case would be dismissed if he failed to file a response. Id. 20 at 5. To date, no response has been filed. 21 As previously explained (id. at 3), “a federal court has an independent duty to 22 assess whether federal subject matter jurisdiction exists, whether or not the parties raise 23 the issue.” White v. O’Reilly Auto Enters. LLC, No. 2:20-cv-00453-JAM-KJN-PS, 2020 24 WL 1532310 , at *1 (E.D. Cal. Mar. 31, 2020) (citing United Investors Life Ins. Co. v. 25 Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004)). Indeed, a district court “must 26 sua sponte dismiss the case if, at any time, it determines that it lacks subject matter 27 jurisdiction.” Id. (citing Fed. R. Civ. P. 12(h)(3)); see Moore v. Maricopa Cty. Sheriff’s 28 Office, 657 F.3d 890, 894 (9th Cir. 2011) (same). 1 Plaintiff’s complaint asserts state law tort claims for legal malpractice, breach of 2 fiduciary duty, and inadequate representation. Doc. 1 at 2-4. Because the complaint 3 asserts no federal claim, the Court lacks subject matter jurisdiction under the federal 4 question statute. See 28 U.S.C. § 1331 ; Yokeno v. Mafnas, 973 F.2d 803, 809 (9th Cir. 5 1992). 6 Diversity jurisdiction has two requirements: (1) complete diversity of citizenship 7 between the parties, and (2) an amount in controversy exceeding $75,000. 28 U.S.C. 8 § 1332(a). Plaintiff “bears the burden of both pleading and proving diversity 9 jurisdiction.” NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 613-14 (9th Cir. 2016). 10 Plaintiff alleges that as a result of Defendants’ tortious conduct, he was not able to 11 obtain a $13,200 judgment against the opposing party and instead was ordered, in July 12 2015, to pay more than $18,000 in legal fees to the opposing party. Doc. 1 at 2. Plaintiff 13 estimates that with accrued interest, this amount has increased to more than $36,000 as of 14 June 2019. Id. Plaintiff further alleges that he paid thousands of dollars to Defendants, 15 but does not specify the actual amounts paid. Id. Plaintiff claims to have “lost 16 employment opportunities and benefits valued at greater than a quarter of a million 17 dollars,” but does not describe what was lost or explain why it was worth more than 18 $250,000. Id. at 2.1 While Plaintiff seeks punitive damages because Defendants’ alleged 19 conduct would “shock the conscience of reasonable people” (id. at 4), the “mere 20 possibility of a punitive damages award is insufficient to prove that the amount in 21 controversy requirement has been met.” Burk v. Med. Sav. Ins. Co., 348 F. Supp. 2d 22 1063, 1069 (D. Ariz. 2004); see Propst v. Simon, No. CV-08-2111-PHX-DGC, 2009 WL 23 307274, at *2 (D. Ariz. Feb. 9, 2009) (“a general prayer for punitive damages, by itself, 24 may not be sufficient to meet the defendant’s burden of proof”); Matheson v. Progressive — 25 — 1 Nor does Plaintiff allege that the lost “opportunities and benefits” were caused 26 by Defendants’ conduct. See Nigro v. Corizon Med. Servs., No. 1:19-CV-00441-BLW, 2020 WL 572714 , at *1 (D. Idaho Feb. 5, 2020) (explaining that “a complaint cannot 27 recite only the elements of a cause of action, supported by mere conclusory statements that a defendant is responsible for the harm alleged”) (citing Bell Atlantic Corp. v. 28 Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 1| Specialty Ins. Co., 319 F.3d 1089 (9th Cir. 2003) (a complaint seeking “in excess” of $10,000 for punitive damages did not clearly satisfy the jurisdictional minimum). 3 Plaintiff has failed to meet his “burden to plead facts supporting a conclusion that 4) the amount in controversy is satisfied.” Raymond v. Bank of Am., N.A., No. 1:19-cv5 | 00790-DAD-JLT, 2019 WL 2465433 , at *3 (E.D. Cal. June 13, 2019). Plaintiff also has 6| failed to show cause why this case should not be dismissed for lack of subject matter jurisdiction. See Doc. 17. The Court accordingly will dismiss this case without 8 | prejudice. See Santos v. Reis, No. 1:20-cv-00109-LJO-SKO, 2020 WL 2404872 , at *2 9| (E.D. Cal. May 12, 2020) (“The deadline for plaintiff to respond to the order to show 10 | cause has expired and no response thereto has been filed by plaintiff.... For the 11 | foregoing reasons, the court DISMISSES plaintiff's complaint for lack of subject matter 12 | jurisdiction.”); Bey v. Nervis, No. 19-CV-08328-HSG, 2020 WL 2097588 , at *2 (N.D. 13 | Cal. May 1, 2020) “On March 18, 2020, the Court issued an order to show cause why the case should not be dismissed for lack of subject matter jurisdiction .... Plaintiff was given until April 15, 2020 to respond. He failed to do so. Finding that no federal question is present on the face of the Complaint, and that Plaintiff failed to plead 17 | complete diversity and amount in controversy to establish diversity jurisdiction, the Court 18 | DISMISSES this action[.]’’). 19 IT IS ORDERED: 20 1. This case is dismissed without prejudice for lack of subject matter 21 jurisdiction. 22 2. Plaintiff’s motion for entry of default (Doc. 15) is denied as moot. 23 3. The Clerk is directed to terminate this action. 24 Dated this 10th day of June, 2020. 25 Ly 26 2 ped © Caer pltl 27 David G. Campbell 28 Senior United States District Judge