United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING IN PART AND
GRANTING IN PART MOTION FOR ORDER TO AMEND COMPLAINT (ECF NO.
5) AND DENYING MOTION FOR OFFICAL SERVICE OF PROCESS (ECF NO.
Honorable Evelyn J Furse United States Magistrate Judge
Jill N. Parrish Magistrate Judge Evelyn J. Furse Pro se
Plaintiff Gary Ray Ortega moved the Court for an Order to
Amend Complaint (ECF No. 5) and for Official Service of
Process (ECF No. 4). In his Motion for Order to Amend
Complaint, Mr. Ortega seeks leave to amend his original
Complaint dated December 22, 2018 (ECF No. 3). (ECF No. 5.)
That Complaint, which is less than two pages in length,
recites certain facts and requests damages but fails to state
sufficient basis for the Court's subject matter
jurisdiction or assert any causes of action against the
Defendants Lasik Vision Institute (“Lasik
Vision”) and Synchrony Bank/Care Credit. (See
ECF No. 3.) Mr. Ortega's Proposed Amended Complaint,
however, alleges that this case is “based on Diversity
of Citizenship.” (Proposed Am. Compl., ¶ 26, ECF
No. 5-1.) The Proposed Amended Complaint also asserts causes
of action against Lasik Vision for (1) misrepresentation of
fact, (2) medical malpractice, (3) battery, (4) negligence
per se, and (5) breach of the implied warranty of fitness for
a particular purpose, and a claim for breach of contract
against Synchrony Bank/Care Credit. (Id.,
¶¶ 27-100, ECF No. 5-1.)
reasons set forth in detail below, the Court GRANTS IN PART
and DENIES IN PART Mr. Ortega's Motion for Order to Amend
Complaint. Mr. Ortega's Proposed Amended
Complaint (ECF No. 5-1) is deficient because it (1) fails to
demonstrate that the Court has subject matter jurisdiction to
hear this case, (2) fails to allege that Mr. Ortega complied
with the prelitigation procedural requirements of the Utah
Health Care Malpractice Act, Utah Code Ann. 78-14-1, et seq.,
which are prerequisites to bringing claims in this court
against Lasik Vision arising out of his December 2016 eye
surgery, and (3) fails to allege facts sufficient to state a
breach of contract claim against Synchrony Bank/Care Credit.
these deficiencies and because Mr. Ortega's Proposed
Amended Complaint would be subject to dismissal if filed, the
Court finds that Mr. Ortega's proposed amendment is
futile. Accordingly, the Court DENIES Mr. Ortega's Motion
for Order to Amend Complaint to the extent he seeks to file
the Proposed Amended Complaint attached to his Motion as ECF
No. 5-1. However, the Court GRANTS Mr. Ortega leave to file
an Amended Complaint by May 24, 2019. The Amended Complaint
should, to the extent possible, correct the deficiencies
outlined below. Further, the Court DENIES without prejudice
Mr. Ortega's Motion for Official Service of Process
because the Court finds service of that facially deficient
Complaint (ECF No. 3) unwarranted at this time.
January 7, 2019, a magistrate judge granted Mr. Ortega's
request to proceed in forma pauperis in this matter.
(ECF No. 2.) Mr. Ortega's original Complaint, dated
December 28, 2018, names Lasik Vision and Synchrony Bank/Care
Credit as Defendants. (Compl., ECF No. 3.) Mr. Ortega asserts
that on December 31, 2016, Lasik Vision performed Lasik eye
surgery on him, causing irreparable damage to his eyes.
(Id., ¶¶ 1, 3-4, 7-13.) He also asserts
that he became “indebted” to Synchrony Bank/Care
Credit prior to the surgery and that he “is now paying
‘interest on the interest' which is not part of the
credit card agreement” and is
“unconscionable.” (Id., ¶¶ 2,
5-6.) Mr. Ortega seeks $5, 000, 000 in damages. (Id.
at 2.) The Complaint does not state sufficient factual
allegations concerning the Court's subject matter
jurisdiction or assert causes of action against any of the
Defendants. (See id.) On January 11, 2019, Mr.
Ortega moved the Court to serve the summonses and Complaint
on Lasik Vision and Synchrony Bank. (Mot. for Official
Service of Process, ECF No. 4.)
January 25, 2019, Mr. Ortega filed a motion seeking leave to
amend his Complaint pursuant to Federal Rule of Civil
Procedure 15. (Mot. for Order to Am. Compl., ECF No. 5.) Mr.
Ortega attaches a Proposed Amended Complaint to his Motion.
(Proposed Am. Compl., ECF No. 5-1.) The Proposed Amended
Complaint asserts the same basic facts concerning the surgery
that Lasik Vision performed on Mr. Ortega and his
indebtedness to Synchrony Bank/Care Credit. (Id.,
¶¶ 8-21.) In contrast to his original Complaint,
Mr. Ortega also alleges that “[t]his case is based on
Diversity of Citizenship, ” (id., ¶ 26),
and asserts causes of action against Lasik Vision for (1)
misrepresentation of fact, (2) medical malpractice, (3)
battery, (4) negligence per se, and (5) breach of the implied
warranty of fitness for a particular purpose, and a claim for
breach of contract against Synchrony Bank/Care Credit.
(Id., ¶¶ 27-100, ECF No. 5-1.) In the
Proposed Amended Complaint, Mr. Ortega continues to seek $5,
000, 000 in damages. (Id., ¶¶ 101-103.)
Rule of Civil Procedure 15(a)(2) provides that district
courts “should freely give leave [to amend] when
justice so requires.” Fed.R.Civ.P. 15(a)(2). A district
court may deny leave to amend only for reasons such as
“undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or]
futility of [the] amendment.” United States ex rel.
Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1166
(10th Cir. 2009) (alterations in original) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)). “ ‘A
proposed amendment is futile if the complaint, as amended,
would be subject to dismissal.' ” Lind v. Aetna
Health, Inc., 466 F.3d 1195, 1199 (10th Cir. 2006)
(quoting Bradley v. J.E. Val- Mejias, 379 F.3d 892,
901 (10th Cir. 2004)); see also Watson ex rel. Watson v.
Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001)
(“A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal for any reason . . .
court construes the filings of a pro se plaintiff liberally
and holds them “to a less stringent standard than
formal pleadings drafted by lawyers, ” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), a pro se
plaintiff must “ ‘follow the same rules of
procedure that govern other litigants.' ”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005) (quoting Nielsen v. Price,
17 F.3d 1276, 1277 (10th Cir. 1994)). Thus, a pro se
“plaintiff still has ‘the burden of alleging
sufficient facts on which a recognized legal claim could be
based.' ” Jenkins v. Currier, 514 F.3d
1030, 1032 (10th Cir. 2008) (quoting Hall, 935 F.2d
at 1110). While a court must make some allowances for
“the [pro se] plaintiff's failure to cite proper
legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity
with pleading requirements[, ]” Hall, 935 F.2d
at 1110, the court cannot act as the litigant's advocate,
supply additional factual allegations, or develop a legal
theory for her. See, e.g., Smith v.
United States, 561 F.3d 1090, 1096 (10th Cir. 2009).
The Proposed Amended Complaint Does Not Establish Subject
Ortega's Proposed Amended Complaint asserts that this
case is “based on Diversity of Citizenship.”
(Proposed Am. Compl., ¶ 26, ECF No. 5-1.) While Mr.
Ortega does not state sufficient facts to support his
assertion that diversity jurisdiction exists, as to venue he
[p]ursuant to FRCP Rule 1391 subsection (a), (b), and (c),
this court has jurisdiction because (i) the Corporate Offices
of LVI are out of the state of Utah in Palm Beach Florida and
(ii) the Corporate Offices of SB/CC are in Orlando Florida
with accounting offices in Draper, Utah.
(Id., ¶ 23.) Further, Mr. Ortega alleges that
he is a “lifetime resident of Utah, ”
(id., ¶ 25), and seeks a total of $5, 000, 000
in damages. (Id., ¶¶ 101-03.)
 courts have limited subject matter jurisdiction and may
only hear cases ‘when empowered to do so by the
Constitution and by act of Congress.' ” Radil
v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1225 (10th
Cir. 2004) (quoting 16 James Wm. Moore, Moore's
Federal Practice § 108.04(2) (3d ed. 2003)).
Subject matter jurisdiction arises through one of two ways.
First, Congress provides federal district courts with federal
question jurisdiction “over ‘civil actions
arising under the Constitution, laws, or treaties of the
United States.' ” Firstenberg v. City of Santa
Fe, 696 F.3d 1018, 1023 (10th Cir. 2012) (quoting 28
U.S.C. § 1331). Second, Congress grants federal district
courts diversity jurisdiction “over ‘all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000 . . . and is between . . . citizens of
different States.' ” Grynberg v. Kinder Morgan
Energy Partners, L.P., 805 F.3d 901, 905 (10th Cir.