United States District Court, D. Colorado
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 ...