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Jurisdiction: Texas Northern District Court
Decision Date: 7/22/2015

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Chapman v. Bender Chapman v. Bender (N.D. Tex., 2015)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        SONYA CHAPMAN, Plaintiff,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DR. BRENT BENDER, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. 3: 15-CV-2198-D-BH

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        July 22, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        SONYA CHAPMAN, Plaintiff, v. DR. BRENT BENDER, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. 3: 15-CV-2198-D-BH

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        July 22, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Referred to U.S. Magistrate Judge

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        FINDINGS CONCLUSIONS AND RECOMMENDATION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Pursuant to Special Order No. 3-251 this pro se case has been automatically referred for screening. Based on the relevant filings and applicable law, the plaintiff's claims should be DISMISSED for lack of subject-matter jurisdiction.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        I. BACKGROUND

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On June 30, 2015, the plaintiff filed this pro se case against the doctor who performed surgery on her foot on June 4, 2013. (doc. 2 at 1-2. ) She alleges that he failed to put a pin in her toe, as he told her he would, and that she will have to have a reconstruction or amputation of her toe. (Id. at 1. ) She seeks to have the doctor pay the costs of the reconstructive surgery, which she estimates will be between $2000. 00 and $5000. 00. (Id. ) The plaintiff lists the doctor's county of residence as Dallas County, Texas. (Id. at 7. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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". Howery v. Allstate Ins. Co 243 F. 3d 912, 916 (5th Cir. 2001). Courts have "a continuing obligation to examine the basis for jurisdiction" and may sua sponte raise

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        the issue at any time. See MCG Inc. v. Great Western Energy Corp 896 F.2d 170 173 (5th Cir. 1990); Burge v. Parish of St. Tammany 187 F. 3d 452, 465-66 (5th Cir. 1999). The party seeking the federal forum has the burden of establishing federal jurisdiction. Howery 243 F. 3d at 916. Fed. R. Ci v. P. 12(h)(3) requires dismissal of a case if a federal court determines that it lacks subject-matter jurisdiction.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Here, the plaintiff's cause of action against the defendant for negligence arises solely under state law. She neither identifies nor asserts any federal causes of action against the defendant, nor makes any allegation to support any federal cause of action against him. Federal courts have no jurisdiction over state law claims in the absence of diversity jurisdiction under 28 U.S.C. 1332.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Diversity jurisdiction is proper only when complete diversity exists between the parties and "the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs. " See 28 U.S.C. 1332(a). Complete diversity "does not exist unless each defendant is a citizen of a different State from each plaintiff. " Owen Equipment & Erection Co. v. Kroger 437 U.S. 365, 373 (1978) (emphasis in the original). As the party seeking to invoke federal jurisdiction in this case, the plaintiff has the burden to show that diversity jurisdiction exists. See Stafford v. Mobil Oil Corp 945 F.2d 803, 804 (5th Cir. 1991).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Here, the plaintiff does not allege that the defendant is a resident of another state; she identifies his county of residence as Dallas County, Texas. She has therefore not met her burden to show that complete diversity exists between the parties, and her state law negligence claim should be dismissed for lack of subject matter jurisdiction. See Dupre v. University Healthcare Sys. L. C 273 F. 3d 1103 (5th Cir. 2001) (dismissing suit for lack of subject-matter jurisdiction where all parties were residents of same state). The plaintiff has also failed to allege that the amount in

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        controversy exceeds the jurisdictional limit for purposes of diversity jurisdiction, since her estimated damages do not exceed $5, 000. 00. Her claims are therefore also subject to dismissal for lack of subject matter jurisdiction on this basis.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        III. RECOMMENDATION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff's claims should be DISMISSED without prejudice for lack of subject-matter jurisdiction.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                SO RECOMMENDED on this 22nd day of July 2015.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        IRMA CARRILLO RAMIREZ        UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        INSTRUCTIONS FOR SERVICE AND
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        NOTICE OF RIGHT TO APPEAL/OBJECT

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. 636(b)(1); Fed. R. Ci v. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n 79 F. 3d 1415, 1417 (5th Cir. 1996).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        IRMA CARRILLO RAMIREZ        UNITED STATES MAGISTRATE JUDGE

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