Dillard v. Lovell ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JAMES HENRY DILLARD II, ) 4 ) Plaintiff, ) Case No.: 2:23-cv-01296-GMN-NJK 5 vs. ) ) ORDER DISMISSING PLAINTIFF’S 6 DAMON LOVELL, et al., ) COMPLAINT WITHOUT PREJUDICE 7 ) FOR LACK OF SUBJECT MATTER Defendants. ) JURISDICTION 8 ) 9 10 Before the Court are Plaintiff’s Responses, (ECF Nos. 7, 9), to the Court’s Orders to 11 Show Cause, (ECF Nos. 6, 7), requiring Plaintiff to explain why the Court should not dismiss 12 this action for lack of subject matter jurisdiction. The Court has reviewed Plaintiff’s Responses 13 and determined that it lacks jurisdiction over this matter. Accordingly, it dismisses Plaintiff’s 14 Complaint, (ECF No. 1-1), without prejudice to be refiled in the appropriate venue. 15 Federal courts, unlike state courts, are courts of limited jurisdiction which can only 16 adjudicate those cases which the United States Constitution or Congress authorize them to 17 adjudicate. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Congress has only 18 authorized federal jurisdiction in cases which present a federal question as set forth by 28 19 U.S.C. § 1331 or where there is complete diversity of citizenship and the amount in controversy 20 exceeds $75,000 as set forth by 28 U.S.C. § 1332. A party seeking to invoke federal subject 21 matter jurisdiction has the burden of establishing that jurisdiction exists. Data Disc, Inc. v. 22 Systems Technology Associates, Inc., 557 F.2d 1280, 1282 (9th Cir. 1977). 23 /// 24 /// 25 /// 1 Beginning with federal question jurisdiction, Plaintiff’s claims do not state causes of 2 action arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. 3 Plaintiff alleges claims pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346, and 4 Defamation, 28 U.S.C § 4102. (Resp., ECF No. 7, 9). Only claims against the United States are 5 included within Federal Tort Claims Act jurisdiction. Defendants Damon Lovell, Kenneth 6 Rucker, and Marquis Edwards (“Defendants”), are private individuals, rendering this section 7 inapplicable. To the extent Plaintiff characterizes his claim as a “violation of civil rights,” there 8 is no indication the named Defendants are acting under color of state law. See West v. Atkins, 9 487 U.S. 42, 108 (1988). The “color of state law” requirement is a condition precedent to 10 stating a 42 U.S.C. § 1983 claim and arises from the specific language of § 1983 and the nature 11 of the Fourteenth Amendment itself. The Bill of Rights does not prohibit acts of private 12 persons, Public Utilities Comm’n v. Pollak, 343 U.S. 451, 461–62, (1952), however 13 discriminatory or wrongful. District of Columbia v. Carter, 409 U.S. 418, 422 (1973). 14 Plaintiff’s remaining claim is for Defamation under 28 U.S.C. 4101. Section 4101 is the 15 definition section of Chapter 181, which addresses the recognition of foreign defamation 16 judgments in domestic courts, and defines defamation, “but does not create a basis for a cause 17 of action.” Gonsalves v. Withy, 2022 WL 10650259, at *2 (D. Haw. Sept. 30, 2022). “Simply 18 put, while an individual’s interest in his reputation is a basic concern, its reflection in the laws 19 of defamation is solely a matter of State law.” Mazzella v. Philadelphia Newspapers, Inc., 479 20 F. Supp. 523, 528 (E.D.N.Y. 1979) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 21 (1974)). Accordingly, Plaintiff has not established federal question jurisdiction. 22 Plaintiff has also failed to allege that the amount in controversy exceeds $75,000 as 23 required by 28 U.S.C. § 1332. Plaintiff summarily states he “is seeking $75,000 from each 24 defendant for defamation of character.” (Resp. Order Show Cause at 2, ECF No. 9). But a 25 plaintiff must provide specific, factual allegations showing how the case in controversy exceeds 1 $75,000. See Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2 ||2003). “Conclusory allegations as to the amount in controversy are insufficient.” /d. at 1090— 3 Plaintiff's conclusory allegations fail to show the amount in controversy requirement is 4 || met. 5 In sum, Plaintiff has not established either form of federal subject matter jurisdiction. 6 || Accordingly, the Court DISMISSES without prejudice Plaintiff's Complaint, (ECF No. 1-1), 7 || for lack of federal subject matter jurisdiction, and DENIES as moot his Motion to Proceed in 8 || forma pauperis, (ECF No. 1). 9 The Clerk of Court is kindly instructed to close the case. 10 DATED this !0 day of April, 2024. 1] Yi, 12 iy vi}, 3 Gloria avarro, District Judge UNITED,STATES DISTRICT COURT 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 of 3