United States District Court, D. Nevada
DWAYNE R. QUINEY, Plaintiff,
DOLLAR GENERAL INC., Defendant.
ORDER AMENDED COMPLAINT (EFC NO. 5)
FERENBACH UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Dwayne Quiney's amended complaint.
(ECF No. 5). The Court hereby orders Quiney to submit a
second amended complaint to address issues as discussed
case centers around an allegation that a Dollar General
employee lied to police about Quiney stealing from the store.
(ECF No. 4 at 1). On November 2, 2017, the Court ordered that
Quiney had until December 8, 2017 to file an amended
complaint (1) clarifying who the Defendants are in this case,
(2) providing a short and plain statement of the grounds of
the Court's jurisdiction, and (3) giving factual details
of the alleged defamation. (ECF No. 3 at 3).
November 29, 2017, Quiney filed an amended complaint. (ECF
No. 5). The amended complaint clarifies that the Defendant is
Dollar General (Id. at 1) and gives more factual
details of the alleged defamation (Id. at 2-4).
However, the amended complaint fails to address the grounds
for this Court's jurisdiction.
courts have limited jurisdiction and are only able to hear
cases authorized by the Constitution and Congress. Polo
v. Innoventions Int'l, LLC, 833 F.3d 1193, 1195-96
(9th Cir. 2016). The general bases for federal jurisdiction
are (1) the action arises under federal law or that (2) all
plaintiffs are diverse in citizenship from all defendants and
the amount in controversy exceeds $75, 000. See 28
U.S.C. §§ 1331, 1332.
amended complaint does not show that this Court has
jurisdiction based on a federal question. The amended
complaint states that is it a civil rights complaint pursuant
to 42 U.S.C. §1983. (ECF No. 5 at 1). This is incorrect.
“To sustain an action under [42 U.S.C.] § 1983, a
plaintiff must show (1) that the conduct complained of was
committed by a person acting under color of state law; and
(2) that the conduct deprived the plaintiff of a
constitutional right.” Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
Quiney alleges that a Dollar General employee, a private
individual, lied about Quiney. (ECF No. 5 at 2-4). If false
statements are “made about [plaintiff] by a private
individual, he would have nothing more than a claim for
defamation under state law.” Paul v. Davis,
424 U.S. 693, 698 (1976). As previously explained in the
Court's November 2, 2017 Order, “[t]hough Plaintiff
cites 28 U.S.C. § 4101 (ECF No. 1-1 at 1), the statute
merely provides a definition of defamation” relating to
foreign judgments. (ECF No. 3 at 2). 28 U.S.C. § 4101
does not apply in this case. Because defamation is a state
law claim, the case does not pose a federal question.
amended complaint also does not show that this Court has
diversity jurisdiction. The place to identify the residence
of the Defendant is left blank. (ECF No. 5 at 2). In
addition, the request for relief is now $20, 000, in addition
to injunctive relief. (Id. at 7). Without
information regarding the residence of the Defendant or a
showing that the amount in controversy exceeds $75, 000, this
Court does not have diversity jurisdiction over this case.
and for good cause shown, IT IS ORDERED that Plaintiff has
until January 5, 2018 to file a Second Amended Complaint
showing (1) the residence of Dollar General and (2) that the
amount in controversy exceeds $75, 000. Failure to timely
file a Second Amended Complaint that addresses the
deficiencies noted in this Order may result in a
recommendation for dismissal with prejudice.
FURTHER ORDERED that if a Second Amended Complaint is later
filed, the Clerk of the Court is directed
NOT to issue summons on the Second Amended
Complaint. The Court will issue a screening order on the
Second Amended Complaint and address the issuance of Summons
at that time, if applicable. See 28 U.S.C. §
Local Rule IB 3-2, any objection to this Order must be in
writing and filed with the Clerk of the Court within 14 days.
The Supreme Court has held that the courts of appeal may
determine that an appeal has been waived due to the failure
to file objections within the specified time. (See Thomas
v. Arn, 474 U.S. 140, 142 (1985)). This circuit has also
held that (1) failure to file objections within the specified
time and (2) failure to properly address and brief the
objectionable issues waives the right to appeal the District
Court's order and/or appeal factual issues from the order
of the District Court. (See Martinez v. Ylst, 951
F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley
United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).
to LSR 2-2, the Plaintiff must immediately file written
notification with the court of any change of address. The
notification must include proof of service upon each opposing
party or the party's attorney Failure to comply