KENNY v. MID DAKOTA CLINIC

DANIEL HOVLAND, Chief Judge, District

Before the Court is the Defendant's Motion to Dismiss for lack of subject matter jurisdiction, filed on September 24, 2004. For the reasons set forth below, the motion is granted.

I. BACKGROUND

The plaintiff, Donna J. Kenny, filed a pro se complaint in federal court on September 3, 2004. This is a medical malpractice action against the defendants, Mid Dakota Clinic, P.C., Steven J. Scherr, M.D., Bruce M. Hetland, M.D., and Brian Herbert, M.D. In her complaint, Kenny alleges that on March 29, 2003, she was seen by an unnamed physician at Mid Dakota's walk-in clinic and subsequently requested to see another physician. Kenny alleges that on that same date she requested through clinic management, "that internal disciplinary measures be taken regarding statements made to the patient by the physician and his attitude during and subsequent to treatment." It is further alleged in the complaint that on April 2, 2003, Kenny was seen by another unnamed physician at Mid Dakota Clinic who prescribed and dispensed medications to her. Thereafter, Kenny claims that she was denied further medical treatment at Mid Dakota Clinic.

Donna Kenny is a resident and citizen of Bismarck, North Dakota. The complaint reveals that each of the named defendants are also residents and citizens of North Dakota.

II. LEGAL DISCUSSION

It is well-established that federal courts are courts of limited jurisdiction. Unlike state courts, federal courts have no "inherent" or "general" subject matter jurisdiction. Federal courts can only adjudicate those cases which the Constitution and Congress authorizes them to adjudicate. Those types of cases generally involve diversity of citizenship or a federal question. Federal courts are presumptively without jurisdiction over civil actions and the burden of establishing the existence of subject matter jurisdiction rests upon the party asserting jurisdiction.Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994).

The basic federal jurisdiction statutes are contained in 28 U.S.C. § 1330, et. seq. Specifically, 28 U.S.C. § 1331 confers "federal question" jurisdiction and 28 U.S.C. § 1332 confers "diversity" jurisdiction in federal court. 28 U.S.C. § 1332 provides in relevant part as follows:

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between —

(1) citizens of different States;

Parties to a federal civil action cannot create subject matter jurisdiction where none exists. Further, lack of subject matter jurisdiction may be raised by any party or by the district court sua sponte. Jurisdiction issues may be raised sua sponte by a federal court when there is an indication that jurisdiction is lacking. Krein v. Norris, 250 F.3d 1184, 1187 (8^th Cir. 2001) (citing Thomas v. Basham, 931 F.2d 521, 522 (8^th Cir. 1991)). "Nothing is to be more jealously guarded by a court than its jurisdiction. Jurisdiction is what its power rests upon. Without jurisdiction it is nothing." In Re Disciplinary Action Against Mooney, 841 F.2d 1003, 1006 (9^th Cir. 1988).

It is clear that federal diversity jurisdiction requires that all parties to the action be "citizens of different States." 28 U.S.C. § 1332(a). The citizenship of the parties is a jurisdictional fact in diversity actions and the burden is on the plaintiff to plead and prove such facts. Any instance of common citizenship prevents federal diversity jurisdiction. Diversity of citizenship is determined at the time the action is filed and complete diversity among all parties is required under 28 U.S.C. § 1332. Associated Ins. Management v. Arkansas Gen. Agency, 149 F.3d 794, 796 (8^th Cir. 1998). It is clear from a careful review of the complaint that neither diversity jurisdiction nor federal question jurisdiction were properly pled in this action nor does it exist. Both Kenny and all of the Defendants are citizens of North Dakota, and none are citizens of different states. In order to invoke the subject matter jurisdiction of the federal court, the matter in controversy must exceed the sum or value of $75,000 and the controversy must be between citizens of different states. Complete diversity among all the parties is lacking as required under 28 U.S.C. § 1332. There is also no federal question or any issues of federal law to be addressed. Simply stated, this Court does not have subject matter jurisdiction over this professional negligence claim. It is clear that the appropriate forum to resolve Kenny's medical malpractice claim is in state court. Kenny is entitled to pursue her claim in state court before March 29, 2005, but this Court clearly lacks any jurisdiction to resolve this dispute.

The Defendant's Motion to Dismiss (Docket No. 7) is GRANTED without prejudice.