Opinion
No. 4:18-CV-138-BO
10-22-2018
TRACEY W. HARPER, YOLANDA M. WILLIAMSON, and RAHMIR WILLIAMSON, Plaintiffs, v. REGIONAL ACCEPTANCE GREENVILLE, and BARBOUR-HEDRICK HONDA GREENVILLE, Defendants.
MEMORANDUM & RECOMMENDATION
This matter is before the court on Plaintiffs' failure to respond to the court's August 21, 2018 order to particularize their complaints. [DE-10]. The undersigned previously conducted a review of Plaintiffs' applications to proceed in forma pauperis under 28 U.S.C. § 1915 and a frivolity review of the complaints pursuant to 28 U.S.C. § 1915(e)(2)(B). [DE-1, -4, -7, -10]. Plaintiff Yolanda M. Williamson's application to proceed in forma pauperis was missing page 5, and she was ordered to provide the missing page in order for the court to evaluate her request. [DE-10] at 1. With respect to the complaints, Plaintiffs were ordered to particularize their complaints to clarify what claim(s) they were asserting and to provide facts establishing the court's subject matter jurisdiction. Id. at 2. Plaintiffs were cautioned that the failure to respond may result in dismissal of their case. Id. Plaintiffs were initially allowed 20 days, until September 10, 2018, to respond, id., and the deadline was extended, upon their request, by an additional 30 days, until October 10, 2018 [DE-14]. Despite the extension, Plaintiffs have failed to respond to the court's order to particularize, and Plaintiff Yolanda Williamson has failed to supplement her in forma pauperis application.
As explained in the prior order on frivolity review, Plaintiffs attempt to invoke the court's federal question jurisdiction, under 28 U.S.C. § 1331, but in liberally construing the complaints, it is not apparent what federal claims Plaintiffs assert. A plaintiff is required to affirmatively allege the facts providing the court's jurisdiction in the complaint. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) ("[T]he facts providing the court jurisdiction must be affirmatively alleged in the complaint."); McPherson v. Highlander Rentals, Inc., No. 4:07-CV-162-F, 2008 WL 2149765, at *3-4 (E.D.N.C. May 21, 2008) (dismissing complaint where plaintiff failed to establish federal question jurisdiction pursuant to 28 U.S.C. § 1331 and the allegations of the complaint fail to establish the requisite diversity between the parties needed for jurisdiction under 28 U.S.C. § 1332(a)(1)). Further, courts are not required to "conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. Nov. 4, 1985). Accordingly, where Plaintiffs have failed to respond to the court's order to particularize, and the complaints as originally filed do not establish a basis for the court's jurisdiction, it is recommended that this matter be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiffs. You shall have until November 8, 2018, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her 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.
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 will 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).
SUBMITTED, this the 22 day of October 2018.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge