United States District Court, D. Nevada
REPORT AND RECOMMENDATION
J. ALBREGTS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on pro se plaintiff Brenna
O'Brien's Amended Complaint (ECF No. 8). She was
previously granted the ability to proceed in forma
pauperis and her original Complaint was dismissed with
leave to amend. (ECF Nos. 4 and 7). The Court will now screen
her Amended Complaint under 28 U.S.C. § 1915(e)(2).
screening the complaint, a court must identify cognizable
claims and dismiss claims that are frivolous, malicious, file
to state a claim on which relief may be granted or seek
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to
state a claim under § 1915(e)(2) incorporates the
standard for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). Watison v. Carter, 668
F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915
review, a complaint must “contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The court liberally construes pro
se complaints and may only dismiss them “if it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to
relief.” Nordstrom v. Ryan, 762 F.3d 903, 908
(9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P'ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although the standard under Rule 12(b)(6) does not require
detailed factual allegations, a plaintiff must provide more
than mere labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
insufficient. Id. Unless it is clear the
complaint's deficiencies could not be cured through
amendment, a pro se plaintiff should be given leave to amend
the complaint with notice regarding the complaint's
deficiencies. Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995).
alleges she began working as a server at La Cave on May 11,
2016. She indicates that she saw a post on a private,
employee-only, Facebook page regarding what she construed to
be a terrorist threat. Plaintiff alleges she submitted a
report regarding the post and response to the post to
management, security, and human resources at Wynn.
Subsequently, her employment was terminated. As a result,
Plaintiff filed this lawsuit with three claims for relief:
defamation, intentional infliction of emotional distress, and
district courts are courts of limited jurisdiction,
possessing only that power authorized by Constitution and
statute.” K2 Am. Corp. v. Roland Oil & Gas,
LLC, 653 F.3d 1024, 1027 (9th Cir. 2011) (quotation
omitted). Federal district courts “have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. Federal district courts have original
jurisdiction over civil actions in diversity cases
“where the matter in controversy exceeds the sum or
value of $75, 000” and where the matter is between
“citizens of different States.” 28 U.S.C. §
1332(a). “Section 1332 requires complete diversity of
citizenship; each of the plaintiffs must be a citizen of a
different state than each of the defendants.”
Morris v. Princess Cruises, Inc., 236 F.3d 1061,
1067 (9th Cir. 2001).
courts have the jurisdiction to determine their own
jurisdiction. Special Investments, Inc. v. Aero Air,
Inc., 360 F.3d 989, 992 (9th Cir. 2004). A court may
raise the question of subject matter jurisdiction sua sponte,
and it must dismiss a case if it determines it lacks
subject-matter jurisdiction. Id.; Fed.R.Civ.P.
Plaintiff does not allege facts invoking this District
Court's jurisdiction. She alleges three claims based on
Nevada law and therefore does not invoke the Court's
federal question jurisdiction. Additionally, the amount in
controversy is not alleged to be $75, 000 and Plaintiff
admits in the Amended Complaint that not all parties are
diverse. For example, she alleges that Defendants Richard
Gallen, Ralph-Rendel Dinglasan, Aaron Murningham, Mark
Hftner, and Genevieve Hopkins are residents and citizens of
Nevada, like her. Therefore, she does not allege facts
invoking the Court's diversity jurisdiction. As the party
seeking to invoke the Court's jurisdiction, Plaintiff
bears the burden of establishing that jurisdiction exists.
See Naffe v. Frey, 789 F.3d 1030, 1040 (9th Cir.
2015). Given that amendment would be futile, the Court will
recommend that this case be dismissed for lack of
subject-matter jurisdiction with prejudice.
THEREFORE RECOMMENDED that this case be dismissed for lack of
subject matter jurisdiction with prejudice.
report and recommendation is submitted to the United States
district judge assigned to this case under 28 U.S.C. §
636(b)(1). A party who objects to this report and
recommendation may file a written objection supported by
points and authorities within fourteen days of being served
with this report and recommendation. Local Rule IB 3-2(a).
Failure to file a timely objection may ...