Opinion
5:23-CV-179-FL
05-02-2023
RONALD SATISH EMRIT, Plaintiff, v. SABINE AISHA JULES, Defendant.
ORDER AND MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK, UNITED STATES MAGISTRATE JUDGE.
This pro se case is before the court on the application [DE #2] by Plaintiff Ronald Satish Emrit to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter having been referred to the undersigned by United States District Judge Louise W. Flanagan. For the reasons set forth below, Plaintiff's application to proceed in forma pauperis is allowed and it is recommended that this action be dismissed.
DISCUSSION
I. IFP Application
Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs. Accordingly, Plaintiff's application to proceed in forma pauperis under 28 U.S.C. § 1915(a) is allowed.
II. Failure to Prosecute
Following the clerk's receipt of documents submitted by Plaintiff on April 6, 2023, an order was entered on April 11, 2023, informing Plaintiff of certain deficiencies with the documents. (4/11/23 Order [DE #3].) Plaintiff was ordered to correct the noted deficiencies within fourteen days and was warned that failure to comply may result in dismissal of the action without prejudice for failure to prosecute. (Id. at 2.)
Plaintiff has not complied with the court's prior order, nor has he requested an extension of time within which to do so. The deadline for correcting the deficiencies having passed, it is recommended that this matter be dismissed for failure to prosecute.
III. Subject Matter Jurisdiction
Plaintiff's complaint is also subject to dismissal for lack of subject-matter jurisdiction. “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336-37 (1895). “The burden of establishing subject matter jurisdiction rests with the plaintiff as ‘the party asserting jurisdiction.'” AGI Assocs., LLC v. City of Hickory, N.C., 773 F.3d 576, 578 (4th Cir. 2014) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). “Furthermore, the complaint must state on its face the grounds for . . . jurisdiction,” regardless of whether it is a case of diversity or federal question jurisdiction. Bowman, 388 F.2d at 760.
Plaintiff's complaint states no basis for federal question jurisdiction, and review of the alleged facts provides no indication of any either. Plaintiff sues his former wife seeking “an injunction as an equitable remedy in the form an annulment.” (Compl. [DE #1] at 1.) While Plaintiff asserts diversity of citizenship jurisdiction, he admits that the amount in controversy does not exceed $75,000. (Compl. ¶ 24 at 5.) Accordingly, Plaintiff has failed to overcome the presumption that this court lacks subject-matter jurisdiction, and the action should therefore be dismissed for lack of subject-matter jurisdiction.
CONCLUSION
For the reasons stated above, Plaintiff's application to proceed in forma pauperis [DE #2] is GRANTED and it is RECOMMENDED that this action be DISMISSED for failure to prosecute or, alternatively, for lack of subject-matter jurisdiction.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. Plaintiff is hereby advised as follows:
You shall have until May 19, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D. N.C. Dec. 2019).
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).