                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


                                )
KATHERINE A. ABEND,             )
                                )
                                )
          Plaintiff,            )
                                )
    v.                          )                      Civil Action No. 10-480 (RMC)
                                )
SAMUEL C. BOYD, INC. and DANIEL )
RANK,                           )
          Defendants.           )
                                )



                                   MEMORANDUM OPINION


                On March 23, 2010, Katherine A. Abend filed a Complaint against Samuel C. Boyd,

Inc., and Daniel Rank alleging negligence. Compl. [Dkt. # 1]. The Complaint alleges that

Defendants contracted to repair the roof at the Kentucky Manor Condominiums and they caused a

fire that damaged the property. Ms. Abend owned Unit 26 at Kentucky Manor. She alleges that

Defendants are liable in negligence but that her damages do not meet the amount in controversy

requirement for diversity jurisdiction. Even so, she asserts that jurisdiction is appropriate under the

supplemental jurisdiction statute, 28 U.S.C. § 1367. The Court issued an Order to Show Cause why

this case should not be dismissed for lack of subject matter jurisdiction. See Order [Dkt. # 5]. Ms.

Abend filed a response on May 11, 2010. See Resp. [Dkt. # 6]. As explained below, because Ms.

Abend has not met her burden of establishing subject matter jurisdiction in this case, the case will

be dismissed.

                A complaint must set forth a “short and plain statement of the grounds for the court’s
jurisdiction.” Fed. R. Civ. P. 8(a). The party claiming subject matter jurisdiction bears the burden

of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.

Cir. 2008). To determine whether it has jurisdiction over a claim, a court may consider materials

outside the pleadings. Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005). No

action of the parties can confer subject matter jurisdiction on a federal court because subject matter

jurisdiction is an Article III and a statutory requirement. Akinseye v. District of Columbia, 339 F.3d

970, 971 (D.C. Cir. 2003).

                The Complaint here does not assert federal question jurisdiction under 28 U.S.C. §

1331, as it is based in negligence. The Complaint also concedes that diversity jurisdiction does not

apply because “[t]he amount in controversy does not exceed $75,000.” Compl. ¶ 1(e); see 28 U.S.C.

§ 1332(a) (diversity jurisdiction requires both diversity of citizenship and an amount in controversy

of more than $75,000). Instead, Ms. Abend claims that “this court has supplemental jurisdiction,

pursuant to Title 28 United States Code Section 1367, since this matter is so related to the claims

in [D’Antuono v. Samuel C. Boyd, Inc., Civ. No. 09-1290 (D.D.C.)] over which this court has

original jurisdiction before the Honorable Rosemary M. Collyer, that this litigation forms part of the

same case and controversy . . . .” Compl. ¶ 1(e). In the D’Antuono case, the owner of Unit # 16 at

Kentucky Manor brought suit in diversity against Samuel C. Boyd, Inc., for damages caused by the

same fire that injured Ms. Abend’s property. The D’Antuono case meets the amount in controversy

requirement.

               For a court to exercise supplemental jurisdiction it must already have original

jurisdiction in the case. Section 1367(a) of the supplemental jurisdiction statute provides:

               Except as provided in subsections (b) and (c) or as expressly provided


                                                 -2-
               otherwise by Federal statute, in any civil action of which the district
               courts have original jurisdiction, the district courts shall have
               supplemental jurisdiction over all other claims that are so related to
               claims in the action within such original jurisdiction that they form
               part of the same case or controversy under Article III of the United
               States Constitution.

28 U.S.C. § 1367(a) (emphasis added); see also Empagran S.A. v. F. Hoffman-LaRoche Ltd., 453

F. Supp. 2d 1, 11 (D.D.C. 2006) (declining to exercise supplemental jurisdiction based on original

jurisdiction established in other independent lawsuits with different case numbers). There is no

original jurisdiction established in this case, and thus there is no jurisdiction upon which to base

supplemental jurisdiction.

               Arguing that supplemental jurisdiction applies, Ms. Abend erroneously cites Exxon

Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005).1 In that case, the Supreme Court

explained that the supplemental jurisdiction statute provided jurisdiction in diversity class actions

over the claims of class members who do not meet the minimum amount in controversy so long as

one of the class representatives does meet the minimum amount. Unlike Exxon, the case at hand is

not a class action.    Further, the Supreme Court in Exxon noted the same prerequisite for

supplemental jurisdiction that this Court relies upon — the Supreme Court stated that “once a court

has original jurisdiction over some claims in the action, it may exercise supplemental jurisdiction

over additional claims that are part of the same case or controversy.” Id. at 552. This Court does

not have original jurisdiction over any claim in Ms. Abend’s case, and thus it cannot exercise

supplemental jurisdiction. Supplemental jurisdiction cannot be based upon original jurisdiction

asserted in another lawsuit.


       1
        The other case that Ms. Abend cites is Kopff v. Battaglia, 425 F. Supp. 2d 76 (D.D.C.
2006). The Kopff case relies upon Exxon. Id. at 79.

                                                 -3-
             Accordingly, this case will be dismissed for lack of subject matter jurisdiction. A

memorializing Order accompanies this Memorandum Opinion.




Date: May 19, 2010                                        /s/
                                           ROSEMARY M. COLLYER
                                           United States District Judge




                                             -4-
