United States District Court, D. Minnesota
Kathleen Woolery, pro se plaintiff.
MEMORANDUM OPINION AND ORDER
R. TUNHEIM Chief Judge United States District Court
Kathleen Woolery commenced this action on May 27, 2016
(Compl., May 27, 2016, Docket No. 1), and applied to proceed
in forma pauperis (“IFP”) (IFP Appl.,
May 27, 2016, Docket No. 2). Woolery also moved for appointed
counsel on June 1, 2016. (Mtn to Appoint Counsel, Jun. 1,
2016, Docket No. 3.) Woolery alleged defendant Lori Peterson
committed attorney malpractice while representing Woolery in
a previous lawsuit. (Compl. at 4.) Woolery specifically
claimed Peterson failed to maintain good communication,
provide requested information, inform Woolery about the
chosen legal course of action, and obtain Woolery's
consent to settle the lawsuit. (Id.; Pl.'s
Notice Att'y Malpractice & Neglect, June 16, 2016,
Docket No. 5.) Woolery also admitted both Woolery
and Peterson are citizens of Minnesota. (Compl. at 3.)
16, 2016, United States Magistrate Judge Franklin Noel issued
a Report and Recommendation (“R&R”) finding
that, although Woolery financially qualified for IFP status,
Woolery failed to allege a basis for the Court's
jurisdiction as required by Fed.R.Civ.P. 8(a)(1). (R&R at
1, June 16, 2016, Docket No. 5.) The Magistrate Judge found
the only cause of action, legal malpractice, arose entirely
from state law and Woolery failed to allege diversity of
citizenship between the parties. (Id.) The
Magistrate Judge recommended the Court dismiss the matter
without prejudice for lack of subject-matter jurisdiction and
deny the IFP application as moot. (Id. at 2.)
filed timely objections to the R&R. (R&R Objs., June
20, 2016, Docket No. 6.) But Woolery's objections did not
address the R&R's dismissal of claim for lack of
subject-matter jurisdiction. (Id. at 1-2.) Instead,
Woolery repeated the legal malpractice arguments presented to
the Magistrate Judge. (Id.)
order for a federal court to hear a case, there must be
subject-matter jurisdiction over a claim, otherwise, the case
must be brought in state court. When a claim is based only on
state law, a federal court can assume jurisdiction only if
the parties are citizens of two different states.
the Court finds Woolery failed to allege facts showing the
Court has subject-matter jurisdiction over the case, the
Court will overrule Woolery's objections, adopt the
R&R, dismiss Woolery's claim without prejudice, and
deny as moot Woolery's IFP application and motion for
STANDARD OF REVIEW
the filing of a report and recommendation by a magistrate
judge, a party may file “specific written
objections” to the “proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2);
accord D. Minn. LR 72.2(b)(1). “The objections
should specify the portions of the magistrate judge's
report and recommendation to which objections are made and
provide a basis for those objections.” Mayer v.
Walvatne, No. 07-1958, 2008 WL 4527774, at *2 (D. Minn.
Sept. 28, 2008). For dispositive motions, the Court reviews
de novo a “properly objected to” portion
of an R&R. Fed.R.Civ.P. 72(b)(3); accord D.
Minn. LR 72.2(b)(3). “Objections which are not specific
but merely repeat arguments presented to and considered by a
magistrate judge are not entitled to de novo review,
but rather are reviewed for clear error.”
Montgomery v. Compass Airlines, LLC, 98 F.Supp.3d
1012, 1017 (D. Minn. 2015).
Woolery's objections merely repeat her legal malpractice
arguments presented to and considered by the Magistrate
Judge, the Court reviews the R&R for clear error.
Magistrate Judge did not clearly err in recommending the
Court dismiss this matter without prejudice for lack of
subject-matter jurisdiction. “If the court determines
at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
“Subject matter jurisdiction . . . is a threshold
requirement which must be assured in every federal
case.” Turner v. Armontrout, 922 F.2d 492, 493
(8th Cir. 1991). A federal court may have
subject-matter jurisdiction either because it has federal
question jurisdiction, pursuant to 28 U.S.C. § 1331, or
diversity jurisdiction, pursuant to 28 U.S.C. § 1332.
Great Lakes Gas Transmission Ltd. P'ship v. Essar
Steel Minn., LLC, 103 F.Supp.3d 1000, 1008 (D. Minn.
2015). Federal question jurisdiction exists either when
“federal law creates the cause of action” or if
“relief necessarily depends on resolution of a
substantial question of federal law.” Franchise Tax
Bd. of Cal. v. Laborers Trust for S. Cal., 463 U.S. 1,
27-28 (1983). Diversity jurisdiction requires “complete
diversity of citizenship among the litigants” and
“an amount in controversy greater than $75, 000.”
OnePoint Sols., LLC v. Borchert, 486 F.3d 342, 346
(8th Cir. 2007).
Woolery fails to articulate any grounds for federal
subject-matter jurisdiction. Woolery seeks relief based on a
state-law claim for legal malpractice. Woolery does not
suggest that she seeks relief based on federal law, or that
she would have grounds to do so. Therefore, federal question
jurisdiction cannot exist under 28 U.S.C. § 1331.
Furthermore, Woolery fails to allege diversity of ...