United States District Court, D. Maine
ORDER AFFIRMING RECOMMENDED DECISION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
20, 2015, Sabra Galvan, acting pro se, filed a complaint
against Sharon Nelson, alleging that Ms. Nelson engaged in
multiple violations of law and claiming this Court has
jurisdiction for “Violation of Civil Rights” and
“Discrimination of the ADA [Americans with Disabilities
Act].” Compl. at 1-4 (ECF No. 1). On November
25, 2015, Sharon Nelson filed a motion to dismiss the
complaint. Def. Sharon Nelson’s Mot. to Dismiss
Pursuant to Fed.R.Civ.P. 12(b) (ECF No. 12). On December
15, 2015, Ms. Galvan responded to the motion to dismiss.
Pl. Sabra Galvan’s Resp. to Def. Sharon
Nelson’s Mot. to Dismiss, and Moves Not to Dismiss due
to the Fact that the Claim Arises under the Constitutional
Laws of the United States, and Civil Rights Act, and the ADA
[Americans with Disabilities Act], Also due to the Fact that
the Def. Lives Out of State this Is a Diversity Case
(ECF No. 14). On December 22, 2015, Ms. Nelson replied to Ms.
Galvan’s response. Def. Sharon Nelson’s Reply
Mem. in Supp. of her Rule 12(b) Mot. to Dismiss (ECF No.
January 25, 2016, the Magistrate Judge issued a recommended
decision in which he recommended that the Court grant in part
and deny in part the motion. Recommended Decision on Mot.
to Dismiss (ECF No. 17). More specifically, he wrote:
Based on the foregoing analysis, I recommend that the Court
grant in part Defendant’s motion to dismiss and dismiss
all claims other than Plaintiff’s claim for damages
related to the alleged dangerous trees on the property,
unless within the deadline for filing an objection to this
Recommended Decision, Plaintiff amends her complaint to state
additional plausible claims on the other subject matters
Plaintiff references in her complaint.
Id. at 7 (footnote omitted). Objections to the
Recommended Decision were due on February 11, 2016. On
February 9, 2016, Ms. Nelson filed an objection to the
Recommended Decision. Def.’s Obj. to R. &
R. (ECF No. 19) (R. & R. Obj.). On February
11, 2016, Ms. Galvan filed a motion to extend time to amend
her complaint. Mot. for More Time to Amend my Compl. to
State a Plausible Fed. Claim (ECF No. 20). On February
23, 2016, Ms. Nelson filed an objection to Ms. Galvan’s
motion to extend time. Def.’s Opp’n to
Pl.’s “Mots.” for More Time to Amend
Compl. (ECF No. 21).
March 9, 2016, the Court issued an order granting Ms.
Galvan’s motion to extend time to amend her complaint,
allowing her until March 25, 2016 to file an amended
complaint. Order on Mot. to Extend Time to Am.
Compl. (ECF No. 22). Ms. Galvan has failed to comply
with the March 9, 2016 Order; she has filed no such amended
complaint. Accordingly, the Magistrate Judge’s
recommended decision on the complaint as originally filed is
ready for resolution.
Court reviewed and considered the Magistrate Judge’s
Recommended Decision, together with the entire record; the
Court has made a de novo determination of all matters
adjudicated by the Magistrate Judge’s Recommended
Decision; and the Court concurs with the recommendations of
the United States Magistrate Judge for the reasons set forth
in his Recommended Decision.
Court briefly addresses Ms. Nelson’s objection. On
February 9, 2016, Ms. Nelson objected to the Recommended
Decision, which she says “purports to allow
Plaintiff’s claims to proceed on the very thin premise
that there are allegedly dangerous trees on the
property.” R. & R. Obj. at 1. Ms. Nelson
then quotes the Magistrate Judge’s Recommended Decision
in Galvan v. Levasseur, 1:15-cv-00283-JAW (ECF No.
16), in which the Magistrate Judge concluded that the
dangerous tree allegation against Ms. Levasseur was a state
law claim and not cognizable in federal court. Id.
(quoting Galvan v. Levasseur, 1:15-cv-00283-JAW,
Recommended Decision on Mot. to Dismiss, at 5 (ECF
No. 16)). Ms. Nelson claims that the Levasseur case
was based on the “same operative facts.”
problem is that the operative facts for purposes of federal
court jurisdiction are not the same in Levasseur and
here. Both Ms. Galvan and Ms. Levasseur live in Maine, and
therefore, this Court may not assume diversity jurisdiction.
28 U.S.C. § 1332(a)(1). As the Magistrate Judge wrote in
Levasseur, the Court has no jurisdiction over Ms.
Galvan’s dangerous tree claim against Ms. Levasseur,
which resonated in state law. By contrast, Ms. Nelson lives
in North Carolina, Compl. at 3, and subject to the
jurisdictional limit of $75, 000, the Court has diversity
jurisdiction over the dangerous tree claim. 28 U.S.C. §
1332(a)(1). Ms. Nelson’s claim that the Court should
dismiss Ms. Galvan’s case against her for the same
reason that it dismissed Ms. Galvan’s case against Ms.
Levasseur is frivolous.
1) The Court ORDERS that the Recommended Decision of the
Magistrate Judge (ECF No. 17) be AFFIRMED;
2) The Court GRANTS in part and DENIES in part Defendant
Sharon Nelson’s Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(b) (ECF No. 12);
3) The Court GRANTS Defendant Nelson’s motion to
dismiss without prejudice to all claims, except Plaintiff
Sabra Galvan’s claim relating to dangerous trees on the
4) The Court OVERRULES Defendant’s Objection to Report
and Recommended ...