United States District Court, D. Nevada
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
Court has a duty to ensure that it has subject matter
jurisdiction over the dispute before it, which is an issue it
can raise at any time. See, e.g., Fed.R.Civ.P.
currently operative complaint does not allege a federal cause
of action, and instead contends that diversity jurisdiction
exists. Compl. at ¶ 4. On March 8, 2018, the Court
ordered Plaintiff to show cause why the case should not be
dismissed for lack of subject matter jurisdiction given that
(1) the complaint does not allege the existence of diverse
parties, Docket No. 3 at 1 (citing Benton v. Doe 1,
et al., 2013 WL 2038225, at *3 (D. Or. Apr. 19,
2013), adopted, 2013 WL 2037470 (D. Or. May 14,
2013)), and (2) the complaint's assertion of the amount
in controversy was not supported by facts, Docket No. 3 at 2.
responded to that order to show cause by abandoning his
attempt to rely on diversity jurisdiction. Docket No. 4.
Instead, Plaintiff now contends that he may be able to plead
a federal cause of action for retaliation under Title VII,
and seeks leave to amend to do so. Plaintiff did not attach a
proposed amended complaint, but see Local Rule
15-1(a), nor does Plaintiff explain why leave is required to
file an amended complaint at this juncture, but see
Fed. R. Civ. P. 15(a) (addressing amending as a matter of
course). The Court has serious doubts as to Plaintiff's
ability to state a claim for retaliation under Title VII,
it will defer ruling on that issue until Plaintiff has
actually filed an amended complaint (if he chooses to do so).
Once that amended complaint is filed, the Court will
determine whether subject matter jurisdiction exists and, in
particular, whether Plaintiff has stated a federal cause of
action. See Fed. R. Civ. P. 12(h)(3); see also
Reed v. Lieurance, 863 F.3d 1196, 1207 (9th Cir. 2017)
(district court may sua sponte dismiss for failure to state a
the Court is deferring ruling on subject matter jurisdiction
to afford Plaintiff an opportunity to file an amended
complaint, the Court feels compelled to remind Plaintiff and
his counsel of their obligations under Rule 11 of the Federal
Rules of Civil Procedure in drafting and filing any such
amended complaint. In the limited filings in this case,
Plaintiff has already provided what appear to be directly
contradictory factual assertions. For example, Plaintiff
attempted to plead diversity jurisdiction on the premise that
“Defendants are not known at this time. Plaintiff has
no knowledge of which states
Defendants belong to.” Compl. at ¶ 5(b) (emphasis
added). In his current filing, however, Plaintiff asserts
that he has reason to believe one of the defendants is a
supervisor working for Nye County.
No. 4 at 2. It is difficult to imagine how Plaintiff could
allege (on March 7, 2018) that he had “no
knowledge” of the doe defendants' citizenship,
while changing course (on March 22, 2018) to say he believes
one of the defendants works for Nye County. Cf. Lew v.
Moss, 797 F.2d 747, 750 (9th Cir. 1986) (citizenship for
diversity purposes is determined based on a number of
factors, including “place of employment”).
short, Plaintiff is permitted to file an amended complaint if
he chooses. Such amended complaint must be filed by March 30,
2018. In the alternative, Plaintiff may consider it to be the
better course to simply file a notice of voluntary dismissal
and to pursue his claims in state court. See Fed. R.
Civ. P. 41(a) (plaintiffs may voluntarily dismiss their cases
prior to the filing of an answer or motion for summary
judgment and, absent an earlier filed-case involving the same
claim, such dismissal is without prejudice).
 Plaintiff appears to believe that a
supervisor's false accusations made against him to the
FBI, standing alone, would constitute retaliation under Title
VII. Docket No. 4 at 2. That is incorrect. The elements of a
prima facie retaliation claim are that (1) the
employee engaged in protected activity, (2) he suffered an
adverse employment action, and (3) there is a causal link
between the protected activity and the adverse employment
action. Davis v. Team Elec. Co., 520 F.3d 1080, 1093
(9th Cir. 2008). Plaintiff has not identified any engagement
in protected activity, let alone protected activity causally
linked to an adverse employment action. Moreover, Plaintiff
provides no indication of any adverse employment action
against him and, instead, his complaint makes clear that he
maintains his position with the Nye County Sheriff's
Department. See Compl. at ¶ 9.
Additionally, and significantly, a plaintiff cannot
bring a claim for retaliation under Title VII without first
exhausting his administrative remedies by filing a timely
charge with the EEOC. See, e.g., Vasquez v. County of Los
Angeles, 349 F.3d 634, 644 (9th Cir. 2003). Given that
Plaintiff is claiming he does not want his supervisor to know
of this retaliation claim, Docket No. 4 at 2, it seems
obvious that he has not exhausted his administrative remedies
with the EEOC.
In short, Plaintiff cannot simply shoehorn his state
tort claim allegations of false reports to the FBI into a
claim for employment retaliation under Title VII.
 Plaintiff appears to seek leave from
the Court to withdraw his complaint. Docket No. 4 at 2. Leave
is not required in the current litigation posture.