Belcher v. Tasset

• Court: District Court, D. Arizona
• Decided: May 21, 2024
• Docket: 2:24-cv-01067
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Charles Belcher, et al., No. CV-24-01067-PHX-DLR

10 Plaintiffs, ORDER

11 v.

12 Mark R Tasset, et al.,

13 Defendants. 14 15 16 Plaintiffs Charles and Nicole Allison Belcher are spouses representing themselves 17 in this lawsuit. The Amended Complaint (Doc. 11) asserts two claims against Defendant 18 Mark R. Tasset, a physician. Count One is a claim for medical negligence, brought by 19 Plaintiff Charles Belcher. (Id. at 9.) Count Two is a claim for loss of consortium and 20 companionship, brought by Plaintiff Nicole Allison Belcher. (Id. at 10.) The Amended 21 Complaint alleges the existence of both federal question and diversity jurisdiction. (Id. at 22 2.) On review, the Court finds two infirmities that will need to be addressed before this 23 case may proceed further. 24 I. Subject-Matter Jurisdiction 25 Unlike state courts, which are courts of general jurisdiction, federal courts have 26 limited subject-matter jurisdiction. Under 28 U.S.C. § 1331, federal courts have 27 jurisdiction over civil actions arising under the Constitution, laws, or treaties of the United 28 States. The Belchers claim that this case implicates a federal question because the Due 1 Process Clause of the Fourteenth Amendment protects an individual’s decision to refuse 2 life-sustaining medical procedures. (Id. at 2.) But the Belchers do not bring a claim under 3 42 U.S.C. § 1983 for violations of their Due Process rights under the Fourteenth 4 Amendment, nor does it appear they could. Section 1983 creates action against any person 5 who, acting under color of state law, deprives another of any rights, privileges, or 6 immunities secured by the Constitution and laws of the United States. See Long v. Cnty. of 7 L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). “[T]he Due Process Clause generally restricts 8 only government actors,” though “a plaintiff can . . . assert a due process claim against a 9 private actor whose conduct amounts to state or federal action.” Pandya v. Bank of Am., 10 No. C23-1947JLR, 2024 WL 519178, at *4 (W.D. Wash. Feb. 9, 2024). Nothing in the 11 Amended Complaint suggests that Dr. Tasset was a government actor when he treated Mr. 12 Belcher. Instead, the Belchers bring two purely state law tort claims: one for medical 13 negligence, the other for loss of consortium. These claims do not arise under federal law 14 and, therefore, the Court does not have federal question jurisdiction. 15 Though state law claims ordinarily are litigated in state courts, under 28 U.S.C. 16 § 1332, federal courts have jurisdiction over civil actions in which each defendant is a 17 citizen of a different state from each plaintiff, and in which the amount in controversy 18 exceeds $75,000. See Dolch v. United Cal. Bank, 702 F.2d 178, 181 (9th Cir. 1983). The 19 Amended Complaint meets the amount-in-controversy threshold because is seeks millions 20 of dollars in damages. (Doc. 11 at 11.) Less clear, however, is whether the Belchers are 21 citizens of a different state than Dr. Tasset. 22 To start, the Amended Complaint does not allege Dr. Tasset’s citizenship. The Court 23 can reasonably infer that Dr. Tasset is a citizen of Arizona because the Amended Complaint 24 alleges that the acts complained of occurred at Banner University Medical Center in 25 Phoenix (Id. at 2), and because the summons lists a Phoenix address for Dr. Tasset (Doc. 26 7). But for clarity, the Amended Complaint should specifically allege Dr. Tasset’s 27 citizenship. 28 Assuming Dr. Tasset is an Arizona citizen, this Court has diversity jurisdiction only 1 if the Belchers are not Arizona citizens. And this is where the Court encounters a problem. 2 [A] natural person’s state citizenship is . . . determined by her state of domicile, not her state of residence. A person’s 3 domicile is her permanent home, where she resides with the intention to remain or to which she intends to return. A person 4 residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state. 5 Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (internal citation 6 omitted). The Amended complaint is ambiguous about the Belchers’ citizenship. It alleges 7 that, at the time of injury, the Belchers lived in Phoenix. But it states that they have been 8 living in Chicago, Illinois, for the past year “for medical treatments and to be close to 9 Neurosurgeons.” (Doc. 11 at 2.) It is unclear, then, where the Belchers’ permanent home 10 is. The Amended Complaint could be read in one of two ways: (1) that the Belchers used 11 to be citizens of Arizona but now permanently reside in Illinois or (2) that the Belchers are 12 citizens of Arizona and intend to return here but are temporarily living in Illinois to be 13 closer to the doctors from whom Mr. Belcher currently is receiving medical treatment. If 14 the Belchers’ permanent home is here in Arizona, and if they intend to return here after Mr. 15 Belcher completes his medical treatments in Illinois, then there is no diversity jurisdiction 16 because the Belchers and Dr. Tasset all are citizens of Arizona. If there is no diversity 17 jurisdiction, then this case belongs in state, not federal, court. But if the Belchers have 18 permanently relocated to Illinois and intend to remain there, rather than return to Arizona, 19 then there is diversity jurisdiction. But at this time the Court cannot determine whether it 20 has subject-matter jurisdiction because the Amended Complaint is ambiguous. 21 II. Self-Representation 22 Although a person can represent himself or herself in federal court, “a non-lawyer 23 has no authority to appear as an attorney for others than himself [or herself].” Johns v. 24 Cnty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (internal quotation and citation 25 omitted). Nothing in the record indicates that either of the Belchers are attorneys. What 26 this means is Mrs. Belcher can represent herself in litigating her loss of consortium claim, 27 but she cannot represent Mr. Belcher in litigating his medical negligence claim. Likewise, 28 Mr. Belcher can represent himself in litigating his medical negligence claim, but he cannot || represent Mrs. Belcher in litigating her loss of consortium claim. 2 Federal Rule of Civil Procedure 11(a) requires that “[e]very pleading, written 3 || motion, and other paper must be signed by at least one attorney of record in the attorney’s 4|| name—or by a party personally if the party is unrepresented.” In reviewing the filings in 5 || this case, the Court observes that none are signed by Mr. Belcher. The original complaint || (Doc. 1 at 9), the Request By Non-Prisoner Pro Se Party for Electronic Noticing (Doc. 2), the Motion to Allow Electronic Filing By a Party Appearing Without an Attorney and 8 || Supporting Information (Doc. 3 at 3, 7), and the Amended Complaint (Doc. 11 at 11) all 9|| are signed only by Mrs. Belcher. This does not comply with Rule 11 because Mrs. Belcher 10 || is not an attorney, she cannot represent Mr. Belcher, and, as a self-represented party, Rule 11 requires Mr. Belcher to sign every, written motion, or other paper filed in his name. 12 Considering these infirmities, 13 IT IS ORDERED that, by no later than June 19, 2024, the Belchers must either (1) || show cause in writing why this case should not be dismissed for lack of subject-matter 15 || jurisdiction or (2) file a second amended complaint that properly pleads diversity jurisdiction and that is signed by both Mr. and Mrs. Belcher. The Clerk of the Court is || directed to dismiss this case for lack of subject-matter jurisdiction if the Belchers fail to 18 || comply with this order within the deadline specified herein. 19 Dated this 21st day of May, 2024. 20 21 22 {Z, 23 {UO Do . Rayes 24 United States District Judge 25 26 27 28

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