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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

DACOREY SATTERWHITE,

Plaintiff,

v.

24 HOUR FITNESS,

Defendant.

Case No. 17-cv-00848-BLF 

ORDER ADOPTING REPORT AND 

RECOMMENDATION OF 

MAGISTRATE JUDGE AND

DISMISSING THE COMPLAINT

WITHOUT LEAVE TO AMEND

[Re: ECF 7]

Plaintiff DaCorrey Satterwhite seeks to proceed in forma pauperis (“IFP”) and brings this 

action against 24 Hour Fitness seeking $5 million in damages for alleged “pain and suffering.” 

See Compl., ECF 1. Presently before the Court is the Report and Recommendation (“R&R”) of 

Magistrate Judge Howard R. Lloyd, wherein Judge Lloyd recommends that the Court grant Mr. 

Satterwhite’s motion for leave to proceed IFP and dismiss the complaint for lack of subject matter 

jurisdiction. R&R, ECF 7. No objections to the R&R have been filed and the deadline to object 

has elapsed. See Fed. R. Civ. P. 72(b)(2). 

The Court has reviewed Judge Lloyd’s R&R, and finds it correct, well reasoned, and 

thorough. Accordingly, the Court ADOPTS the R&R in full and DISMISSES the complaint for 

lack of subject matter jurisdiction. Additionally, for the reasons stated below, the Court declines 

to grant leave to amend. 

In deciding whether to grant leave to amend, the Court must consider the factors set forth 

by the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the 

Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). A district 

court ordinarily must grant leave to amend unless one or more of the Foman factors is present: (1) 

undue delay, (2) bad faith, or dilatory motive, (3) repeated failure to cure deficiencies by 
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United States District Court

Northern District of California

amendment, (4) undue prejudice to the opposing party, and (5) futility of amendment. Eminence 

Capital, 316 F.3d at 1052. “[I]t is the consideration of prejudice to the opposing party that carries 

the greatest weight.” Id. However, a strong showing with respect to one of the other factors may 

warrant denial of leave to amend. Id.

Four of the factors are not applicable here, however the Court finds the fifth factor 

dispositive. As Judge Lloyd correctly discussed, federal courts are courts of limited jurisdiction. 

Because Plaintiff and Defendant are residents of California, Mr. Satterwhite cannot proceed on the 

basis of diversity jurisdiction. Moreover, the only claim set forth in the complaint is a state law 

tort claim for emotional distress, thus, there are no facts that Mr. Satterwhite could allege that 

would allow him to bring a federal claim. Accordingly, any claims must be pursued in state court. 

For the foregoing reasons the Court ADOPTS Judge Lloyd’s R&R and DISMISSES the 

above-titled action WITHOUT LEAVE TO AMEND. 

IT IS SO ORDERED.

Dated: May 30, 2017

______________________________________

BETH LABSON FREEMAN

United States District Judge