United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE.
Court has reviewed Magistrate Judge Kent's Report and
Recommendation in this matter (ECF No. 7) and Plaintiffs'
Objection to it. (ECF No. 8). Under the Federal Rules of
Civil Procedure, where, as here, a party has objected to
portions of a Report and Recommendation, “[t]he
district judge . . . as a duty to reject the magistrate
judge's recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12
Wright, Miller & Marcus, Federal Practice and Procedure
§ 3070.2, at 451 (3d ed. 2014). Specifically, the Rules
The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Civ. P. 72(b)(3). De novo review in these circumstances
requires at least a review of the evidence before the
Magistrate Judge. Hill v. Duriron Co., 656 F.2d
1208, 1215 (6th Cir. 1981). The Court has reviewed de novo
the claims and evidence presented to the Magistrate Judge;
the Report and Recommendation itself; and Plaintiffs'
Objection. As the Magistrate Judge detailed, Plaintiffs filed
a single paragraph complaint against Defendant Hilton Hotel
for events occurring in Atlanta, Georgia. The Magistrate
Judge determined that Plaintiffs' complaint should be
dismissed for lack of subject-matter jurisdiction and for
failure to state a claim. After its review, the Court finds
that Magistrate Judge Kent's Report and Recommendation is
factually sound and legally correct, and that dismissal is
Objection attempts to cure the jurisdictional defect in their
Complaint by invoking this Court's diversity and federal
question jurisdiction. They have established neither. As to
diversity, construed liberally, Plaintiffs suggest that
diversity of citizenship exists because the alleged events in
this case occurred in the State of Georgia, and both
Plaintiffs are residents of Michigan. (ECF No. 8, PageID.23).
Diversity is established, however, by establishing that the
civil case is between citizens of different states, and not
by alleging that the events underlying the lawsuit occurred
in a different state. See 28 U.S.C. § 1332.
Moreover, it is well established that residency (which is
what Plaintiffs allege) and citizenship are separate
concepts, and it is citizenship-not residency-that controls
for purposes of diversity. See Kaiser v. Loomis, 391
F.2d 1007 (6th Cir. 1968); Ford Motor Company v.
Collins, 2011 WL 5877216 (E.D. Mich. Nov. 23, 2011)
(applying Kaiser to dismiss a case premised on
diversity jurisdiction where the complaint established only
residency, not citizenship). Accordingly, the Court agrees
with the Magistrate Judge that diversity jurisdiction is
lacking here, and Plaintiffs' Objection fails to
Court also agrees with the Magistrate Judge that Plaintiffs
fail to demonstrate a federal question for purposes of
federal question jurisdiction under 28 U.S.C. § 1331. In
their Objection, Plaintiffs aver Defendant Hilton Hotel
violated their First and Fourth Amendment rights. (ECF No. 8,
PageID.23). To the extent that Plaintiffs are attempting to
raise a federal question under 42 U.S.C. § 1983 against
Hilton Hotel, Plaintiffs have not done so. “To state a
claim under 42 U.S.C. § 1983, a plaintiff must allege
the violation of a right secured by the federal constitution
or laws and must show that the deprivation was committed by a
person acting under color of state law.” Hundley v.
Burdick's Bar & Grill, No. 1:09-cv-868, 2009 WL
3429099, at *2 (W.D. Mich. Oct. 3, 2009) (citing West v.
Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009)).
Plaintiffs do not allege that Defendant Hilton Hotel was
acting under color of state law. To the contrary, Defendant
is clearly a private actor. Plaintiffs claims accordingly
fail, and federal question jurisdiction is
the Court agrees with the Magistrate Judge that, more
generally, Plaintiffs fail to state a Twombly
plausible claim and that dismissal is warranted under 28
U.S.C. § 1915(e)(2)(B). Even under the most liberal of
readings, Plaintiffs' pro se allegations merely allege
they watched a third-party get hurt on an escalator, and
Plaintiff Shaffer hurt his hand trying to push the emergency
stop button. Those allegations fail to allege the violation
of any federal law, constitutional right, or state law and so
fail to state a claim.
IT IS ORDERED that the Report and Recommendation of
the Magistrate Judge (ECF No. 7) is approved and adopted as
the Opinion of the Court.
Court discerns no good-faith basis for appeal of this matter.
See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th
Cir. 1997); 28 U.S.C. § 1915(a)(3).
case is DISMISSED.
Apart from subject-matter jurisdiction,
the Court is also satisfied that venue does not properly lie
in this district. See 28 U.S.C. § 1391(b).