UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) KA THERINE A. ABE ND, ) ) ) P laintif f, )

) v. ) Civil Action No. 10-480 (R MC) ) SAMUEL C. BOYD, INC. and DANIEL RANK , ) ) Defendan ts. ) )

MEMORAN DUM OP INION

On Marc h 23, 2010, Kather ine A. Abend filed a Complaint ag ainst Samuel C. Boy d,
I nc., and Daniel Rank alleg ing neg lige nce. Compl. [Dkt. # 1]. The Complaint al l ege s t h at Def endants contra cted to repa ir the roof at the Ke ntucky Manor Condomini ums a nd they cause d a fire that damag ed the proper ty

. Ms. Abend o wn ed Unit 26 at Kentucky Manor. She alleg es that Def endants are liable in neg lige nce but t h at her damag es do not meet the amount in controve rsy require ment for diversity jurisdiction. Even so, she asser ts that jurisdiction is appropr iate under the supplemental jurisdiction statute, 28 U.S.C. § 1367. The Court issued an Orde r to Show Cause why this case should not be dismiss ed for lack of subject matter jurisdiction. See Orde r [Dkt. # 5]. Ms. Abend filed a response on May 11, 2010. See Resp. [Dkt. # 6]. As explained below, beca use Ms. Abend has not met her bur den of e stablishing subjec t matter jurisdiction in this case, the case will be dismissed.
A complaint must set forth a “short and plain statement of the g rounds for the court’sjurisdiction.” Fe d. R. Civ. P. 8(a)

. The party claiming subject matter jurisdiction bear s the burden

of demonstrating that such jurisdiction e x ists. Khadr v

. United States , 529 F.3d 1112, 1115 ( D.C. Cir

. 2 0 0 8 ). To deter

mine whether it has j urisdiction over a claim, a court may consider materials outside the pleading s. Settles v. U.S. Parole Comm’n , 429 F.3d 1098, 1107 ( D.C. Cir. 2005). No action of the parties can confe r subject matter jurisdiction on a fede ral court beca use subject matter jurisdiction is an Article I I I and a statutory require ment. Akinsey e v. District of Columbia , 339 F.3d 970, 971 (D.C. Cir. 2003).

The Complaint here does not asser t fede ral question jurisdiction under 28 U.S.C. § 1331, as it is based in neg lige nce. The Complaint also conce des that diversity jurisdiction does not apply beca

use “[t] he amount in controve rsy does not exceed $75,000.” Compl. ¶ 1(e) ; see 28 U.S.C. § 1332(a) (diversity jurisdiction require s both diversity of citizenship and an amount in controve rsy of m ore tha n $ 7 5 , 0 0 0 ). I nstead, Ms. Abend claims that “this court has supplemental j urisdiction, pursuant to Title 28 United S tates C ode S ection 1367, since thi s mat t er i s so rela ted t o the claims in [ D’Antuono v. Samuel C. Boyd, Inc. , Civ. No. 09-1290 (D.D.C.)] over which this court has orig inal jurisdiction befor e the Honora ble Rosemary M. Colly er, that this litigation forms part of the

same case and controve rsy . . . .” Compl. ¶ 1(e)

. I n the D’Antuono case , the owner of Unit # 16 at Kentucky Manor broug ht suit in diversity ag ainst Samuel C. Boy d, I nc., for damag es cause d by the

same fire that injured Ms. Abend’ s proper ty

. The D’Antuono case meets the amount in controve rsy require ment. For a court t o exercise supplemental jurisdiction it must already have orig inal jurisdiction in the case. Sec tion 1367(a) of the supplemental jurisdiction statute provides:
Ex cept as provided in subsections (b) and (c) or as expressly provided

-2-otherwise by Fe dera l sta tute, in any civil action of which the district co u r t s have original jurisdiction , the district courts shall hav e supplemental j urisdiction over all other claims that are so rela ted to claims in the action within such orig inal j u ri s diction that they form part of the same case or controve rsy under Article I I I o f the United States Consti tution.
28 U.S.C. § 1367(a) (empha sis added); see also Empagran S.A. v. F. Hoffman-LaRoche Ltd. , 453
F. Supp. 2d 1, 11 (D.D.C. 2006) (dec lining to exercise supplemental jurisdiction based on orig inal jurisdiction established in other independe nt lawsuits with differ ent ca s e numbers). There is no orig inal jurisdiction establi s h ed in this case , and thus there is no jurisdiction upon which to base supplemental jurisdiction.

Arg uing that supplemental jurisdiction applies, Ms. Abend err oneously cites Exx on Mobil Corp. v. Allapattah Servs. , I nc., 545 U.S. 546 (2005). I n that case , the Supreme Court 1 explained that the supplemental jurisdiction statute provided jurisdiction in diversity class actions

over the claims of class members who do not me et the minimum amount in controve rsy so long as

one of the class repr esenta tives does meet the minimum amount. Unlike Exx on , the case at hand is

n o t a class action. Fur ther, the Supreme Court in Exx on noted the same prer equis i t e fo r supplemental jurisdiction that this Court relies upon — the Supreme Court stated that “once a court has o ri g inal jurisdiction over some claims in the action, it may exercise supplemental jurisdiction

over a dditional claims that are part of the s ame case or controve rsy .” Id

. at 552. This Court does
not have orig inal jurisdiction over any claim in Ms. Abend’ s case , an d t h u s i t cannot exercise

s u p p lemental jurisdiction. Supplemental jurisdiction cannot be based upon orig inal jurisdict i o n

asser ted in another

lawsuit.

The other case that Ms. Abend cites is Kopff v. Battaglia , 425 F. S upp. 2d 76 (D.D.C. 1 2006). The Kopff

case relies upon Exx on . Id . at 79. -3-Acc ording ly , this case will be dism i s s ed fo r l ack of subject matter jurisdiction. A

memorializing Orde r ac companies this Memora ndum Opinion.

Date: Ma y 19, 2010 /s/ ROSEMARY M. COL L YER United States District J udg e

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