Richmond v. Smith

127 F.R.D. 178, 1989 U.S. Dist. LEXIS 9359, 1989 WL 89693
CourtDistrict Court, D. Nevada
DecidedMay 22, 1989
DocketNo. CV-N-86-434-ECR
StatusPublished
Cited by1 cases

This text of 127 F.R.D. 178 (Richmond v. Smith) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richmond v. Smith, 127 F.R.D. 178, 1989 U.S. Dist. LEXIS 9359, 1989 WL 89693 (D. Nev. 1989).

Opinion

ORDER

EDWARD C. REED, Jr., Chief Judge.

On September 10, 1986, plaintiff Daniel C. Richmond filed this diversity action, pro se. Plaintiff is incarcerated at the Nevada State Prison, and is proceeding in forma [179]*179pauperis (document # 2). In his complaint, plaintiff alleges that the defendants “have illegally converted the Plaintiffs personal Property to their own use and gain.” Complaint, page 1 (document # 1). The gravaman of the complaint is that plaintiffs ex-wife, Irene R. Smith, aka Irene R. Richmond, has failed to return to plaintiff certain personal property belonging to plaintiff, as ordered in their divorce decree which was entered March 7, 1983, by the First Judicial District Court of the State of Nevada in and for Carson City. See Decree of Divorce, Exhibit C to Complaint.

On February 26, 1988, the Clerk of Court entered a Default against defendant Irene R. Smith, for her failure to plead or otherwise defend in the present action (document # 11). Plaintiff thereafter filed a Request to the Clerk for Default Judgment (document # 13). Plaintiff requests that judgment in the sum of $376,150.00, plus interest, be entered against defendant Irene R. Smith.

The matter was referred to Magistrate Phyllis Halsey Atkins (document # 14), and on January 24, 1989, she filed her Report and Recommendation (document # 15). The Magistrate recommended that we deny plaintiff’s pending motion for default judgment (document # 13). We hereby adopt the Magistrate’s recommendation, for the reasons hereinafter set forth.

1. SUBJECT MATTER JURISDICTION

Federal courts are courts of limited jurisdiction. Therefore, any party seeking to avail itself of the jurisdiction of a federal court must affirmatively support the allegation that jurisdiction lies. Without such an affirmative showing, the presumption is that the federal court is without jurisdiction. Grace v. Am. Cent. Ins. Co., 109 U.S. 278, 283, 3 S.Ct. 207, 209, 27 L.Ed. 932 (1883).

Failure to make a complete and affirmative showing that diversity jurisdiction exists relegates a litigant to “jurisdiction purgatory,” as described by Chief Justice Hughes in McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936):

The prerequisites to the exercise of jurisdiction are specifically defined ■* * * They are conditions which must be met by the party who seeks the exercise of jurisdiction in his favor. He must allege in his pleading the facts essential to show jurisdiction. If he fails to make the necessary allegations he has no standing.

Using this framework to evaluate plaintiff’s complaint, we find that plaintiff has not sufficiently shown the existence of diversity jurisdiction in this Court. Plaintiff has named several defendants whose true names and identities are unknown. The presence of these fictitious defendants defeats diversity. Garter-Bare Co. v. Munsingwear, Inc., 650 F.2d 975, 981 (9th Cir.1980), cert. denied, 469 U.S. 980, 105 S.Ct. 381, 83 L.Ed.2d 316 (1984); Fifty Associates v. Prudential Ins. Co., 446 F.2d 1187, 1191 (9th Cir.1970); Molnar v. Nat’l Broadcasting Co., 231 F.2d 684 (9th Cir.1956). Plaintiff will therefore be given leave to amend his complaint to dismiss the fictitious defendants (i.e., Black & White Corporations 1-5, Able & Baker Companies 1-5, partnerships, and John and Jane Does 1-5). In the alternative, plaintiff shall be required to make an affirmative showing that none of the fictitious defendants is a Nevada resident. This must be shown by more than mere conclusory pleading. See Molnar, 231 F.2d at 687. If plaintiff is unable to show that the fictitious defendants do not defeat diversity, they must be dismissed. Without such dismissal, this Court has no jurisdiction over plaintiff’s case.

2. DEFAULT JUDGMENT

Plaintiff’s request that the Clerk of Court enter default judgment against defendant Irene R. Smith is misdirected. According to Fed.R.Civ.P. 55(b)(1), the Clerk is authorized to enter default judgment only when “the plaintiff’s claim against a-defendant is for a sum certain or for a sum which can by computation be made certain.” Plaintiff has indeed requested a certain sum, but this is not to say that his [180]*180request for $376,150.00 is a “sum certain.” The Court has no way of knowing how this sum was calculated. In order to determine the value of the property plaintiff seeks to recover, an evidentiary hearing would need to be held. Such a hearing is authorized by Fed.R.Civ.P. 55(b)(2), after which plaintiff may request that default judgment be entered by the Court.

3. SERVICE OF PROCESS

Our, personal jurisdiction over defendant Irene R. Smith is based on Nevada’s Long Arm Statute, NRS § 14.065 (1986). Under that section, nonresidents of Nevada are subject to the personal jurisdiction of Nevada state courts if, among other things, they “liv[e] in the marital relationship within this state notwithstanding subsequent departure from this state, as to all obligations arising for ... property settlement, if the other party to the marital relationship continues to reside in this state____”

The record before us is clear that plaintiff and defendant lived as a married couple in Las Vegas, Nevada, for a number of years. Defendant apparently moved to California sometime after plaintiff’s incarceration at NSP. Plaintiff remains a resident of Nevada. Therefore, the statutory requirements have been met, and defendant Irene R. Smith is properly subject to our jurisdiction.

Having determined that defendant is subject to personal jurisdiction here, we next must determine whether defendant was properly served with the summons and complaint.

Process was ordered served by the United States Marshal, pursuant to Fed.R. Civ.P. 4(c)(2)(B)(i). On September 25, 1986, the Marshals Service served the summons and complaint by mail on defendant Irene R. Smith, at an address plaintiff supplied as her place of employment on the U.S.M. 285 form. An acknowledgment of receipt of the summons and complaint, signed “Smith” and dated October 6, 1986, was received and filed on October 27, 1986 (document # 5).

The service by mail was made pursuant to Fed.R.Civ.P. 4(c)(2)(C)(ii).

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Cite This Page — Counsel Stack

Bluebook (online)
127 F.R.D. 178, 1989 U.S. Dist. LEXIS 9359, 1989 WL 89693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richmond-v-smith-nvd-1989.