Smith v. All persons claiming a present or future Interest

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
IDA SMITH,
Plaintiff, 	CASE NO. 2011-41
v.
ALL PERSONS CLAIMING A
PRESENT OR FUTURE INTEREST
IN ESTATE 13, FRIIS, BAB
FRIIS NO. 1, ESTATE 15
CONCORDIA A. CORAL BAY
QUARTER, ST. JOHN, UNITED
STATES VIRGIN ISLANDS
EXCEPT THE UNITED STATES OF
AMERICA, NATIONAL PARK
SERVICE,
Defendants.
REPORT AND RECOMMENDATION ON MOTION TO FILE
SECOND AMENDED COMPLAINT AND
FOR SERVICE BY PUBLICATION
Before the Court is plaintiff=s motion for leave to file a second
amended complaint and for service by publication. Plaintiff seeks
to 	amend 	the 	Amended 	Complaint 	(ECF 	4) 	to 	add 	specific 	named
defendants, to assert a request for punitive damages, and to allow
the “original survey Register No. 3783 by A.L. Shalowitz dated 1919”
as an exhibit to the proposed second amended complaint.
Rule 15(a) of the Federal Rules of Civil Procedure provides that
leave to amend a complaint should be freely given when justice so
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Smith v. All persons claiming a present or future interest
Civil No. 2011-41
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requires.1 A motion to amend may be denied Aif a plaintiff=s delay
in 	seeking 	the 	amendment 	is 	undue, 	motivated 	by 	bad 	faith,
prejudicial 	to 	the 	opposing 	party, 	or 	where 	amendment 	would 	be
futile.@2 AFutility@ denotes that Athe complaint, as amended, would
fail to state a claim upon which relief may be granted@3 or that “‘the
amendment 	will 	not 	cure 	[any] 	deficiency 	in 	the 	original
complaint.’”4
Here, 	plaintiff 	alleges 	that 	the 	Court 	has 	subject 	matter
jurisdiction of this action based on diversity of citizenship. 	In
order 	to 	invoke 	the 	Court’s 	jurisdiction 	based 	on 	diversity 	of
citizenship, however, plaintiff must allege the citizenship of all
the parties to the action to demonstrate that the requirements of
28 	U.S.C. 	§ 	1332 	have 	been 	met. 5 In 	plaintiff’s 	proposed 	second
complaint, plaintiff does not allege the citizenship of any of the
1 	Fed. R. Civ. P. 15 (a).
2 	E. H. v. School District of Philadelphia, 2009 U.S. Dist. LEXIS
118921, at *5 (E. D. Pa., Dec. 21, 2009) (citing Foman v. Davis, 371 U.S.
178 (1962)).
3 	Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citations
omitted).
4 	Reszler v. Travelers Property Casualty Insurance, 2007 U. S. Dist. LEXIS
24683, at *13 (D.N.J. April 3, 2007)(quoting Onyiuke v. New Jersey State Supreme
Court, 435 F. Supp. 2d 394, 403 (D.N.J 2006)).
5 	Osthaus v. Button, 70 F.2d 392, 393 (3d Cir. 1934)(“Where the
jurisdiction of the federal court is invoked on the basis of diversity of
citizenship, the pleadings should affirmatively disclose that such
diversity exists.”).
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Smith v. All persons claiming a present or future interest
Civil No. 2011-41
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parties. 	As such, it would be futile to grant plaintiff’s motion
as the proposed Second Amended Complaint does not allege sufficient
facts to support subject matter jurisdiction in this Court.
Accordingly, it is hereby
RECOMMENDED 	that 	plaintiff=s 	motion 	to 	file 	a 	second 	amended
complaint be DENIED without prejudice; it is further
RECOMMENDED that plaintiff have 21 days from the date of this
Order to again seek for leave to amend; and it is further
RECOMMENDED that plaintiff’s motion for service by publication
be DENIED as plaintiff has not met the requirements of 5 V.I.C. §
112(a) 	such 	that 	the 	Court 	could 	grant 	the 	motion 	for 	service 	by
publication.
Any objections to this Report and Recommendation must be filed
in writing within 14 days of receipt of this notice. 	Failure to file
objections within the specified time shall bar the aggrieved party
from attacking such Report and Recommendation before the assigned
District Court Judge. 	28 U.S.C. Section 636(b)(1)(B); LRCi 72.3.
S\________________________________
RUTH MILLER
United States Magistrate Judge
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Civil No. 2011-41
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