Andre Nesbit v. Speedway LLC

• Court: District Court, C.D. California
• Decided: March 23, 2023
• Docket: 2:23-cv-00912
• Status: Unknown

Opinion

Case 2:23-cv-00912-DMG-JDE Document 27 Filed 03/23/23 Page 1 of 3 Page ID #:165

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 ANDRE NESBIT, ) Case No. CV 23-00912-DMG-JDE ) 12 ) Plaintiff, ) ORDER ACCEPTING FINDINGS 13 ) v. ) AND RECOMMENDATION OF 14 ) UNITED STATES MAGISTRATE SPEEDWAY LLC, et al., ) JUDGE 15 ) Defendants. ) 16 ) ) 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the records on file, 19 including the operative Third Amended Complaint (Dkt. 23, “TAC”) filed by 20 Andre Nesbit (“Plaintiff”); the Report and Recommendation issued by the 21 assigned magistrate judge (Dkt. 25, “Report”); and Plaintiff’s Objection to the 22 Report (Dkt. 26). 23 The Court has engaged in a de novo review of those portions of the 24 Report to which objections have been made. The Court accepts the findings 25 and recommendation of the magistrate judge. 26 For clarity, the Court notes that Plaintiff originally sought to bring this 27 action based on both federal question and diversity jurisdiction. (See Dkt. 1-1 at 28 Case 2:23-cv-00912-DMG-JDE Document 27 Filed 03/23/23 Page 2 of 3 Page ID #:166

1 1.) The Magistrate Judge then advised Plaintiff of the requirements for 2 pleading diversity of citizenship (see, e.g., Dkt. 15 at 4-5, 7-8; Dkt. 22 at 12), 3 and Plaintiff did not correct the deficiency in his allegations regarding 4 Defendants’ citizenship. Instead, Plaintiff now appears to be asserting only 5 federal question jurisdiction, despite acknowledging that he is not bringing this 6 action based on a federal claim pursuant to 42 U.S.C. § 1983. (Dkt. 23 at 1; 7 Dkt. 26 at 1.) 8 As explained in the Report and Recommendation, Plaintiff has not 9 stated a federal claim based on his request for injunctive relief or any potential 10 claim pursuant to 42 U.S.C. § 1983. (See Dkt. 25 at 6-9.) In addition, the 11 Court notes that Plaintiff is mistaken to the extent he argues that New York 12 Times Co. v. Sullivan, 376 U.S. 254 (1964), provides for a federal cause of action 13 for slander. (Dkt. 26 at 1.) Rather, the United States Supreme Court in New 14 York Times Co. found that Alabama’s state libel law was constitutionally 15 deficient. 376 U.S. at 264, 267-84. Nor do Plaintiff’s citations to California 16 state court authority support any federal cause of action. (See Dkt. 23 at 3-6; 17 Dkt. 26 at 1, 4-6 (citing Unterberger v. Red Bull N. Am., Inc., 162 Cal. App. 4th 18 414 (2008); Chang v. Lederman, 172 Cal. App. 4th 67 (2009); Fowler v. Varian 19 Assocs., Inc., 196 Cal. App. 3d 34 (1987).) 20 As the Report and Recommendation explains, because Plaintiff has not 21 established that the Court has original jurisdiction over this action based on a 22 federal question, and because Plaintiff has not met his burden of establishing 23 diversity jurisdiction despite the opportunity for amendment, the Court will 24 not exercise supplemental jurisdiction over Plaintiff’s state law claims. (See 25 Dkt. 25 at 10.) 26 /// 27 /// 28 /// 2 se 2:23-cv-00912-DMG-JDE Document 27 Filed 03/23/23 Page 3of3 Page ID #:16

1 Therefore, IT IS HEREBY ORDERED that Judgment shall be entered 2 || dismissing this action without prejudice. 3 In addition, based upon the record before it, the Court finds and certifies 4 ||that any appeal by Plaintiff would have no arguable basis in law or fact, 5 ||rendering it frivolous and not taken in good faith under 28 U.S.C. § 1915(a)(3) 6 ||and Federal Rule of Appellate Procedure 24(a)(3)(A). For the foregoing 7 ||reasons, Plaintiff's existing in forma pauperis status is REVOKED. 8 Pursuant to Fed. R. App. P. 24(a)(4), the Clerk 1s directed to 9 |limmediately notify Plaintiff and the Court of Appeals for the Ninth Circuit of 10 || this Order. 11 Plaintiff is advised that he may still seek leave to proceed in forma 12 || pauperis on appeal by filing such a motion in the Court of Appeals for the 13 || Ninth Circuit within thirty (30) days of service of this Order. See Fed. R. App. 14 ||P. 24(a)(5). 15 dnt. In, Au 7 DATED: March 23, 2023 » “SL. DOLLY Yif GEE 18 UNITED"STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28