Allen v. Winder
Filing
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ORDER Granting 5 Defendant's Motion to Dismiss. The Clerk of the Court is ordered to close this case. Signed by Judge Miranda M. Du on 02/05/2013. (Copies have been distributed pursuant to the NEF - AC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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JONATHAN A. ALLEN,
Case No. 2:12-cv-00957-MMD-CWH
Plaintiff,
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ORDER
v.
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(Def.’s Motion to Dismiss dkt. no. 5)
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DAN M. WINDER,
Defendant.
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I.
SUMMARY
Before the Court is Defendant Dan M. Winder’s Motion to Dismiss. (Dkt. no. 5.)
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Plaintiff has not responded. For the reasons discussed below, the motion is granted.
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II.
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BACKGROUND
This is a case arising from breach of contract and alleged attorney malpractice.
Plaintiff’s complaint alleges the following facts:
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Around May 2009, Plaintiff and Defendant entered into a contract whereby
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Defendant would render legal services to TJ, Inc. to file a Chapter 11 bankruptcy.
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Plaintiff paid Defendant $7,000.00 for his services but Defendant did not render services
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properly. Due to the alleged breach, Plaintiff suffered $737,114.30 in actual damages.
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Plaintiff filed suit pro se on June 6, 2012, alleging a single state law claim for breach of
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contract. Defendant seeks to dismiss the complaint on several grounds. The Court will
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address dismissal based on lack of subject matter jurisdiction.
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III.
DISCUSSION
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Federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v.
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Kroger, 437 U.S. 365, 374 (1978). “A federal court is presumed to lack jurisdiction in a
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particular case unless the contrary affirmatively appears.” Stock West, Inc. v.
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Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
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The plaintiff is the party invoking the court’s jurisdiction and, as a result, the plaintiff
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bears the burden of proving that the case is properly in federal court. McCauley v. Ford
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Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. Gen. Motors Acceptance
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Corp., 298 U.S. 178, 189 (1936)). To establish subject matter jurisdiction pursuant to
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diversity of citizenship, the party asserting jurisdiction must show: (1) complete diversity
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of citizenship among opposing parties and (2) an amount in controversy exceeding
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$75,000. 28 U.S.C. § 1332(a).
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Here, Plaintiff fails to establish diversity jurisdiction for the Court to adjudicate his
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single state law claim. Specifically, Plaintiff’s Complaint alleges that Plaintiff is a citizen
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of the State of Nevada and Defendant is a corporation organized and existing under
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Nevada law. As opposing parties are both residents of the State of Nevada, there is no
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diversity of citizenship. Therefore, this Court does not have jurisdiction to adjudicate this
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dispute.
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IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss is GRANTED.
The Clerk of the Court is ordered to close this case.
DATED THIS 5th day of February 2013.
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MIRANDA M DU
MIRANDA M.
RA
RA
UNITED STATES DISTRICT JUDGE
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