United States District Court, D. Utah, Central Division
J. Furse Magistrate Judge.
MEMORANDUM DECISION AND ORDER OVERRULING
PLAINTIFF'S OBJECTION TO MAGISTRATE JUDGE'S REPORT
AND RECOMMENDATION & ADOPTING REPORT AND
WADDOUPS, UNITED STATES DISTRICT JUDGE.
se litigant Cedric Greene sues Defendant Access Services
Inc. on behalf of his wife, Valerie Stephen. (See
Dkt. Nos. 3, 5.) Mr. Greene seeks $50, 000 in damages for an
Access Services driver's alleged collision with Ms.
Stephen as she was attempting to enter the driver's
vehicle. (See Dkt. No. 3.)
case was assigned to United States District Court Judge Clark
Waddoups, who then referred it to United States Magistrate
Evelyn J. Furse under 28 U.S.C. § 636(b)(1)(B). (Dkt.
No. 4.) On July 17, 2017, Judge Furse issued a Report and
Recommendation recommending that this action be dismissed for
lack of subject matter over the case, improper venue, and
lack of standing. (Dkt. No. 6.)
Greene filed an objection to Judge Furse's Report and
Recommendation. (Dkt. No. 9.) In the objection, Mr. Greene
asserts that he is “proceeding under the sports term
and law of professional sports within the meaning of the
collective bargaining agreement.” (Id. at 2.)
Mr. Greene claims he is an “unrestricted free
agent” and asks that the court “maintain
jurisdiction of this case under the ‘soft cap'
exception, ” which “will overshadow the
jurisdiction subject that is mentioned in the report just
like the ‘soft cap exception' allow [sic] for NBA
teams to exceed the salary cap.” (Id.) He
states that proceeding under “collective bargaining
rules” and “sports law . . . gives more
flexibility to the two sides . . . .” (Id. at
3.) He also notes that “the cause of action that we
have prepared for this matter is one that can be used in
state or federal court . . . .” (Id.) Finally,
Mr. Greene analogizes his request to proceed as an
“unrestricted free agent” under collective
bargaining rules and “sports law” to the
Republicans' use of the “‘skinny repeal'
to present their case, ” arguing that “if they
can use the ‘skinny repeal' term to present their
case we have reasons to believe that we can have our litigant
proceeding under sports law and rules to present our
case.” (Id. at 4.)
Greene is not new to this district or to the jurisdictional
issues identified by Judge Furse. He has filed at least
twelve actions in this district since June 2016, including
this case. At least ten of those cases have now been
dismissed for lack of subject matter jurisdiction, and
several of those dismissals have been affirmed by the Tenth
Circuit on appeal. In light of Mr. Greene's prior
litigation history in this district, he is well on notice
that he must plead a basis for a federal court's subject
matter jurisdiction in any given action.
Tenth Circuit has explained to Mr. Greene, in several orders
affirming dismissal of his complaints for lack of
jurisdiction, the following principles underlying a federal
court's assertion of subject matter jurisdiction:
Federal courts “have an independent obligation to
determine whether subject matter jurisdiction exists, even in
the absence of a challenge from any party.” Arbaugh
v. Y&H Corp., 546 U.S. 500, 514 (2006). A court must
dismiss a case upon concluding that it lacks subject-matter
jurisdiction. Fed.R.Civ.P. 12(h)(3). The party asserting
subject-matter jurisdiction must overcome a presumption
against jurisdiction. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994).
The basic statutory grants of federal subject-matter
jurisdiction are contained in 28 U.S.C. §§ 1331 and
1332. Section 1331 provides for federal-question
jurisdiction, § 1332 for diversity of citizenship
jurisdiction. A party invokes § 1331 jurisdiction by
pleading a colorable claim “arising under” the
Constitution or laws of the United States. See Bell v.
Hood, 327 U.S. 678, 681-85 (1946). A party invokes
§ 1332 jurisdiction by demonstrating that the parties
have diverse citizenship and that the claim exceeds $75, 000.
See 28 U.S.C. § 1332(a); Arbaugh, 546
U.S. at 513.
E.g., Greene v. Sprint Nextel Corp., No.
16-4133, ___ F. App'x ___, 2017 WL 2557059, at *1 (10th
Cir. June 13, 2017).
Mr. Greene's Complaint asserts no basis for this court to
exercise subject matter jurisdiction. (See Dkt. No.
3.) The Complaint raises no apparent federal question or
diversity jurisdiction. See Whitelock v. Leatherman,
460 F.2d 507, 514 (10th Cir. 1972) (“A federal
court's jurisdiction must clearly appear from the face of
a complaint.”). Even so, Judge Furse liberally reads
the Complaint to assert state law tort claims. The court
agrees with Judge Furse that such claims do not raise federal
question jurisdiction. Nor does the Complaint meet the
requirements of diversity jurisdiction. Mr. Greene includes
no citizenship allegations as to any of the parties in the
Complaint and he seeks damages in an amount below the
threshold statutory requirement.
court will not entertain Mr. Greene's assertion that
jurisdiction could be waived or “overshadowed” by
his proceeding under “sports law” or the
NBA's “collective bargaining rules.” A
federal court's jurisdiction is defined and limited by
Congress and statute, not the NBA. “Federal courts are
courts of limited jurisdiction; they are empowered to hear
only those cases authorized and defined in the Constitution
which have been entrusted to them under a jurisdictional
grant by Congress.” Henry v. Office of Thrift
Supervision, 43 F.3d 507, 511 (10th Cir. 1994). A party
cannot waive or forfeit a lack of subject-matter
jurisdiction. Arbaugh, 546 U.S. at
the court ADOPTS the Report and
Recommendation with respect to the jurisdictional issue,
(Dkt. No.6), and DISMISSES Mr. Greene's
action for lack of subject matter jurisdiction. Because the
court determines that it lacks subject matter jurisdiction