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Ortega v. Lasik Vision Institute

United States District Court, D. Utah

April 24, 2019

GARY RAY ORTEGA, Plaintiffs,
v.
LASIK VISION INSTITUTE and CARE CREDIT/SYNCHRONY BANK, Defendants.

          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. 4)

          Honorable Evelyn J Furse United States Magistrate Judge

         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.)

         For the reasons set forth in detail below, the Court[1] GRANTS IN PART and DENIES IN PART Mr. Ortega's Motion for Order to Amend Complaint.[2] 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.

         Given 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.

         FACTUAL BACKGROUND

         On 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.)

         On 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.)

         LEGAL STANDARD

         Federal 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 . . . .”).

         While a 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).

         DISCUSSION

         A. The Proposed Amended Complaint Does Not Establish Subject Matter Jurisdiction

         Mr. 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 states that

[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.)

         “District [] 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. ...


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