Opinion
C. A. 8:21-3749-RBH-TER
01-19-2022
Frank J. Washington, #291556, a/k/a Frank Jermaine Washington, #115204, a/k/a Frank Jermaine Washington, #82625, Plaintiff, v. Green Dot Corporation, John Doe, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a state prisoner but appearing to attempt to file a nonprisoner type civil action, proceeding in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1), and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for her, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
The court informed Plaintiff regarding the deficiencies in his original Complaint and Plaintiff was given notice and opportunity to amend his Complaint. (ECF No. 5). Plaintiff availed himself of such opportunity and filed an Amended Complaint; however, the deficiencies persist and this action is subject to summary dismissal for lack of subject matter jurisdiction.
Plaintiff sues Green Dot Corporation and a John Doe. (ECF No. 9). Plaintiff only alleges that the action arises out of diversity of citizenship jurisdiction. (ECF No. 9 at 3). No federal question jurisdiction basis is alleged. (ECF No. 9 at 3). Plaintiff does not allege an amount in controversy under the appropriate question. (ECF No. 9 at 5). The extent of Plaintiff's allegations are that he had an account with the defendant and that $1,500 was missing. Plaintiff alleges he filed a report and never received his money back. (ECF No. 9 at 5). Relief requested is $1,500 and $1,500 for every day he has not received the $1,500 back. (ECF No. 9 at 5).
Federal courts are courts of limited subject matter jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Because federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir.1999), citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337, 327 (1895). Federal courts have an “independent obligation” to investigate the limits of its subject-matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). As such, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also Fed.R.Civ.P. 12(h)(3). A plaintiff must allege in his pleading the facts essential to show jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182 (1936). To this end, Federal Rule of Civil Procedure 8(a)(1) requires that the complaint provide “a short and plain statement of the grounds for the court's jurisdiction.” If, however, the complaint does not contain “an affirmative pleading of a jurisdictional basis, the federal court may find that it has jurisdiction if the facts supporting jurisdiction have been clearly pleaded.” Pinkley, Inc., 191 F.3d at 399 (citing 2 Moore's Federal Practice § 8.03[3] (3d ed.1997).
District courts exercise two types of subject matter jurisdiction: federal question jurisdiction pursuant to 28 U.S.C. § 1331 and diversity jurisdiction pursuant to 28 U.S.C. § 1332. The diversity statute requires complete diversity of parties and an amount in controversy in excess of seventy-five thousand dollars ($75,000.00). 28 U.S.C. § 1332(a). Complete diversity of parties in a case means that no party on one side may be a citizen of the same State as any party on the other side. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978). Important here, Plaintiff's allegations of an amount in controversy in excess of seventy-five thousand dollars is not plausibly alleged.
“The demand for relief upon which the amount in controversy is based must be made in good faith and it must appear reasonably possible that the complainant may recover an amount in excess of the jurisdictional minimum.” Thompson v. Brown, No. 7:19-CV-02504-TMC-JDA, 2019 WL 6255829, at *4 (D.S.C. Oct. 3, 2019), report and recommendation adopted, 2019 WL 6255134 (D.S.C. Nov. 22, 2019)(a court must refrain from considering punitive damages as a part of its jurisdictional analysis where a complaint fails to allege facts to support a claim for punitive damages under South Carolina law)(internal citation and quotation omitted). Furthermore, “it was never the intent of Congress for the federal courts to exercise jurisdiction over every state case in which punitive damages have been pled and the parties are of diverse citizenship.” Hamilton v. Ocwen Loan Servicing, LLC, No. 9:12-cv-03111-PMD, 2013 WL 499159, at *5 (D.S.C. Feb.7, 2013) (quoting Hagood v. Electrolux Home Prods., Inc., No. 8:06-1799-HFF, 2006 WL 1663804, at *2 (D.S.C. June 15, 2006). Liberally construed, Plaintiff's request for essentially $500,000(based on calculations of eleven months of $1,500 every day) is a request for punitive damages as Plaintiff has alleged he is only missing $1,500 from his account with the Defendants. The amount of punitive damages here is not plausibly alleged and Plaintiff's factual allegations are unsupportive of damages meeting the $75,000 amount in controversy requirement. Plaintiff has not alleged any federal question basis for jurisdiction and has not sued a federal or state actor.
Thus, this action is subject to summary dismissal for a lack of subject matter jurisdiction.
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case without prejudice and without issuance and service of process for lack of subject matter jurisdiction over this action.
See Platts v. O'Brien, 691 Fed.Appx. 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“A dismissal for ... [a] defect in subject matter jurisdiction[ ] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.”)..
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).