Williams v. Walgreens Co.

          ORDER VACATING AS MOOT THE FEBRUARY 13, 2019 ORDER TO SHOW CAUSE AND THE MARCH 28, 2019 RECOMMENDATION, AND ORDERING PLAINTIFF TO SHOW CAUSE

          WILLIAM J. MARTÍNEZ, JUDGE

         This matter is before the Court on United States Magistrate Judge Kristen L. Mix's (1) Order to Show Cause dated February 13, 2019 (the “February 13, 2019 Order to Show Cause”; ECF No. 4), which ordered Plaintiff Sharon Williams (“Plaintiff”) to show cause why this lawsuit should not be dismissed without prejudice for lack of subject matter jurisdiction; and (2) Recommendation dated March 28, 2019 (the “Recommendation”; ECF No. 6), which recommended that this lawsuit be dismissed without prejudice for lack of subject matter jurisdiction. On April 10, 2019, Plaintiff filed an Objection to the Recommendation. (“Objection”; ECF No. 8.)

         For the reasons set forth below, the February 13, 2019 Order to Show Cause is vacated as moot, the Recommendation is vacated as moot, the Objection is overruled as moot, and Plaintiff is ordered to show cause why this case should not be dismissed for lack of subject matter jurisdiction and Plaintiff's failure to timely effect service on the Defendants.

         I. FACTUAL & PROCEDURAL BACKGROUND

         On January 29, 2019, Plaintiff, proceeding pro se, brought claims against several defendants (not entirely congruent with the current group of Defendants) for premises liability. (ECF No. 1.) In the Complaint, Plaintiff asserted that the Court has federal question jurisdiction under 28 U.S.C. § 1331. (Id. at 3.) Plaintiff listed the Colorado Premises Liability Act, Colo. Rev. Stat. § 13-21-115, as the “federal” statute at issue in this case. (Id.) The sole factual allegation contained in the Complaint stated: “On Feb 1, 2017 I slipped & fell on black ice at Walgreens.” (Id. at 4.)

         On February 13, 2019, Judge Mix ordered Plaintiff to “show cause, in a writing filed with the Court on or before March 15, 2019, as to why this matter should not be DISMISSED without prejudice for lack of subject matter jurisdiction.” (ECF No. 4 at 2 (emphasis in original).) In the February 13, 2019 Order to Show Cause, Judge Mix noted that Plaintiff “cites to 28 U.S.C. § 1331 as the jurisdictional basis for her action, ” but “only asserts a state law premises liability claim.” (ECF No. 4 at 2.) Judge Mix added: “In order to comply with this Order to Show Cause, Plaintiff shall file an Amended Complaint that adequately demonstrates why the Court has jurisdiction over this matter. . . . Failure to comply with this Order to Show Cause will result in sanctions, including a recommendation that Plaintiff's case be dismissed.” (Id. (emphasis in original).) Judge Mix also stayed the case “pending the filing of the Amended Complaint.” (Id. at 3.)

         Plaintiff did not file an amended complaint by March 15, 2019 or otherwise respond to the February 13, 2019 Order to Show Cause. On March 28, 2019, Judge Mix issued the Recommendation, wherein she discussed Plaintiff's failure to respond to the Order to Show Cause and how Plaintiff had not even attempted to contact the Court. (ECF No. 6 at 2.) Judge Mix also noted that “[n]o mail has been returned to the Court from the address on file for Plaintiff, ” and that Plaintiff had not informed the Court of “any changes in her contact information, ” which she is obligated to do under D.C.COLO.LCivR. 5.1(c). (ECF No. 6 at 2-3.) Thus, Judge Mix concluded that Plaintiff had abandoned her lawsuit. (Id. at 3.) Judge Mix also reiterated that Plaintiff failed to establish federal question jurisdiction as she “only asserts a state law premises liability claim.” (Id.) In addition, Judge Mix noted that it “does not appear from the face of the Complaint that the Court may exercise diversity jurisdiction pursuant to 28 U.S.C. § 1332.”^[1] (ECF No. 6 at 3.) For these reasons, Judge Mix made absolute the February 13, 2019 Order to Show Cause and recommended that this case be dismissed without prejudice. (Id.)

         On April 10, 2019, Plaintiff filed an Objection to the Recommendation. (ECF No. 8.) In the Objection, Plaintiff states:

I am objecting because I did not receive the [February 13, 2019 Order to Show Cause]. I first heard of th[at] order when I received the [Recommendation, ] which was received by me on Saturday March 30, 2019. I now understand what I should do so I want to file [an] amended complaint.

(ECF No. 8 at 1-2.) Attached to the Objection was Plaintiff's Amended Complaint. (“Amended Complaint”; ECF No. 8-1.)^[2]

         II. ANALYSIS

         A. The Recommendation & February 13, 2019 Order to Show Cause are Moot

         Federal Rule of Civil Procedure 15(a)(1) provides A party may amend its pleading ...