Opinion
No. 3:18-cv-3215-K-BN
02-08-2019
JESSE HORLANDO MARTINEZ, Plaintiff, v. H&R BLOCK TAX SERVICES, Defendant.
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This action filed by a then-Texas prisoner proceeding pro se against a tax preparation company has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Ed Kinkeade.
The undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should dismiss this action without prejudice for lack of subject matter jurisdiction or, alternatively, for Plaintiff Jesse Horlando Martinez's failure to prosecute and obey an order of the Court.
Applicable Background
Martinez, then-serving a 3-year sentence after being convicted in state court in Dallas County for failing to register as a sex offender, brought this action against H&R Block Tax Services, alleging that one of its employees negligently, unprofessionally, and fraudulently assisted him with his federal tax filing in 2015. See Dkt. No. 3. Martinez presents these claims on the form typically used for filing civil rights actions under 28 U.S.C. § 1983. See id. And he has moved for leave to proceed for in forma pauperis. See Dkt. No. 4.
On December 10, 2018, the Court ordered Martinez to file no later than January 9, 2019 a written response showing that the Court has subject matter jurisdiction over his lawsuit. See Dkt. No. 5. Prior to that deadline, Martinez moved for additional time (30 days), citing his recent release to a halfway house. See Dkt. No. 6. And, on January 11, the Court granted Martinez's motion but warned him "that failure to file the required written response by February 8, 2019 will result in a recommendation that this action be dismissed for either lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3) and/or failure to prosecute under Federal Rule of Civil Procedure 41(b)." Dkt. No. 7 (emphasis omitted). Martinez has failed to file the required response by the extended deadline.
Further, while Martinez filed a notice of change of address providing the Court the address of the halfway house, see Dkt. No. 8, all orders sent to Martinez at that address have been returned as undeliverable, see Dkt. Nos. 10 & 11.
Legal Standards and Analysis
I. Subject Matter Jurisdiction
Federal courts have an independent duty to examine their own subject matter jurisdiction, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999), particularly when - as is the case here - a plaintiff's complaint fails to make it apparent that subject matter jurisdiction exists.
The federal courts' jurisdiction is limited, and federal courts generally may only hear a case if it involves a question of federal law or where diversity of citizenship exists between the parties. See 28 U.S.C. §§ 1331, 1332. Because Martinez chose to file his lawsuit in federal court, it is his burden to establish federal jurisdiction. And if he does not, this lawsuit must be dismissed. See FED. R. CIV. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
In diversity cases, each plaintiff's citizenship must be diverse from each defendant's citizenship, and the amount in controversy must exceed $75,000. See 28 U.S.C. §§ 1332(a), (b). And federal question jurisdiction under 28 U.S.C. § 1331 "exists when 'a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Borden v. Allstate Ins. Co., 589 F.3d 168, 172 (5th Cir. 2009) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 27-28 (1983)). "A federal question exists 'if there appears on the face of the complaint some substantial, disputed question of federal law.'" In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995)).
The Court will not assume it has jurisdiction. Rather, "the basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot be established argumentatively or by mere inference." Getty Oil Corp. v. Ins. Co. of N.A., 841 F.2d 1254, 1259 (5th Cir. 1988) (citing Ill. Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 636 & n.2 (5th Cir. 1983)).
Here, Martinez has not "affirmatively and distinctly" alleged jurisdiction. And his complaint reflects neither that complete diversity between the parties nor that the requisite amount in controversy exists nor that federal law creates his cause of action against H&R Block. See Dkt. No 3. As to the last point, particularly considering the form on which Martinez brings his claims,
"[p]rivate individuals generally are not considered to act under color of law," Ballard v. Wall, 413 F.3d 510, 518 (5th Cir. 2005), but "private action may be deemed state action when the defendant's conduct is 'fairly attributable to the State,'" Priester v. Lowndes County, 354 F.3d 414, 423 (5th Cir. 2004) (quoting Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999)).Moody v. Farrell, 868 F.3d 348, 352 (5th Cir. 2017). Here, Martinez has not alleged that the defendant's actions are fairly attributable to the State by, for example, "'alleg[ing] specific facts to show' ... that [the defendants] and public actors entered into an agreement to commit an illegal act." Gordon v. Neugebauer, 57 F. Supp. 3d 766, 774-76 (N.D. Tex. 2014) (quoting Tebo v. Tebo, 550 F.3d 492, 496 (5th Cir. 2008)).
And, where a plaintiff "does not allege facts demonstrating that [a defendant] acted under color of state law," he fails "to plead and establish subject-matter jurisdiction based on the existence of a federal question." Mitchell v. Clinkscales, 253 F. App'x 339, 340 (5th Cir. 2007) (per curiam) ("The complaint contains no allegation that Mitchell and Clinkscales are citizens of different states; thus, Mitchell failed to plead and establish subject-matter jurisdiction based on the existence of complete diversity. Additionally, although Mitchell argues that Clinkscales is liable under 42 U.S.C. § 1983, Mitchell does not allege facts demonstrating that Clinkscales acted under color of state law; thus, Mitchell failed to plead and establish subject-matter jurisdiction based on the existence of a federal question. [And t]he district court was required to dismiss the complaint." (citations omitted)).
Further, to the extent that Martinez asserts that a criminal violation of federal tax law provides subject matter jurisdiction under Section 1331, even if a federal criminal statute applies here, Martinez may "not assert a valid basis for federal question jurisdiction" by relying "on federal criminal statutes only," Robinson v. Pulaski Tech. Coll., 698 F. App'x 859 (8th Cir. 2017) (per curiam) (citations omitted), as he "has no standing to institute a federal criminal prosecution and no power to enforce a criminal statute," Savannah v. United States, No. 3:07-cv-2052-O, 2009 WL 1181066, at *2 (N.D. Tex. Apr. 30, 2009) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); United States v. Batchelder, 442 U.S. 114, 124 (1979)); see also McKeague v. Matsuura, Civ. No. 08-00571 ACK-KSC, 2009 WL 89112, at *2 (D. Haw. Jan. 12, 2009) (citing "a handful of federal criminal statutes ... fails to sufficiently demonstrate that [a plaintiff's] claims arise under federal law" (citation omitted)).
The Court should therefore dismiss this action without prejudice for lack of subject matter jurisdiction.
II. Failure to Prosecute
Rule 41(b) "authorizes the district court to dismiss an action sua sponte for failure to prosecute or comply with a court order." Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (citing McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam)); accord Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440 (5th Cir. 2016) (failure to comply with a court order); Rosin v. Thaler, 450 F. App'x 383, 383-84 (5th Cir. 2011) (per curiam) (failure to prosecute). That authority "flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)); see also Lopez v. Ark. Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978) ("Although [Rule 41(b)] is phrased in terms of dismissal on the motion of the defendant, it is clear that the power is inherent in the court and may be exercised sua sponte whenever necessary to 'achieve the orderly and expeditious disposition of cases.'" (quoting Link, 370 U.S. at 631)).
A Rule 41(b) dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996).
Although "[l]esser sanctions such as fines or dismissal without prejudice are usually appropriate before dismissing with prejudice, ... a Rule 41(b) dismissal is appropriate where there is 'a clear record of delay or contumacious conduct by the plaintiff and when lesser sanctions would not serve the best interests of justice.'"Nottingham, 837 F.3d at 441 (quoting Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008) (per curiam) (in turn quoting Callip v. Harris Cnty. Child Welfare Dep't, 757 F.2d 1513, 1521 (5th Cir. 1985))); see also Long, 77 F.3d at 880 (a dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be futile); cf. Nottingham, 837 F.3d at 442 (noting that "lesser sanctions" may "'include assessments of fines, costs, or damages against the plaintiff, conditional dismissal, dismissal without prejudice, and explicit warnings'" (quoting Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013))).
When a dismissal is without prejudice but 'the applicable statute of limitations probably bars future litigation,'" that dismissal operates as - i.e., it is reviewed as - "a dismissal with prejudice." Griggs, 905 F.3d at 844 (quoting Nottingham, 837 F.3d at 441).
By not updating his mailing address, Martinez has prevented this action from proceeding, leaving the impression that he no longer wishes to pursue the relief sought in his complaint. He has therefore failed to prosecute his lawsuit. And, as the Court has observed in a similar context, "[w]here months pass without any contact by a plaintiff and all mail sent to a plaintiff within the same time period - at the only address plaintiff provides - is returned as undeliverable, the court has no option but to conclude that plaintiff has abandoned the prosecution of his lawsuit." Davis v. Hernandez, No. 3:12-cv-2013-L-BN, 2016 WL 335442, at *3 (N.D. Tex. Jan. 5, 2016) (quoting Beck v. Westbrook, No. 3:14-cv-2364-B, 2015 WL 7241377, at *2 (N.D. Tex. Oct. 6, 2015), rec. adopted, 2015 WL 7196340 (N.D. Tex. Nov. 16, 2015)), rec. adopted, 2016 WL 320644 (N.D. Tex. Jan. 27, 2016). Similarly, the Court should not let this action languish on its docket because there is no way to contact Martinez.
A Rule 41(b) dismissal of this lawsuit without prejudice is therefore warranted under these circumstances. And the undersigned concludes that lesser sanctions would be futile; the Court is not required to delay the disposition of this case until such time as Petitioner decides to update his contact information or contact the Court.
Accordingly, should the Court determine that there is subject matter jurisdiction, it should exercise its inherent power to prevent undue delays in the disposition of pending case and sua sponte dismiss this action without prejudice.
Recommendation
The Court should dismiss this action without prejudice under Federal Rules of Civil Procedure 12(h)(3) or, alternatively, under Federal Rule of Civil Procedure 41(b).
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: February 8, 2019
/s/_________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE