Opinion
No. 3:03-CV-2089-K
April 1, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
On September 15, 2003, the Court received a document that it construed as a civil complaint against Bank of America. Plaintiff therein alleges that defendant allowed an Alvin Shead to withdraw funds from plaintiff's bank account without permission. (Compl. at 1.) On January 29, 2004, the Court granted plaintiff permission to proceed in forma pauperis in this action. Earlier this month, plaintiff filed an amended complaint against Bank of America, and named Alvin Shead as an additional defendant. (Am. Compl. at 1-2.) No process has been issued in this case.
Plaintiff has filed two previous federal complaints against Bank of America and Mr. Shead. See Johns v. Bank of America, No. A-03-CA-534-AD2 (W.D. Tex. 2003) (Compl. filed July 30, 2003); Johns v. Bank of America, No. A-02-CA-414-JN (W.D. Tex. 2002) (Compl. filed July 2, 2002). In both Western District cases, plaintiff asserted claims against Bank of America and Alvin Shead related to unauthorized withdrawal of funds. On July 3, 2002, a Magistrate Judge recommended that the first action be dismissed for failure to state a claim. On August 30, 2002, the United States District Court for the Western District of Texas accepted the recommendation and dismissed the action. On August 7, 2003, that same court dismissed the second action without prejudice for lack of jurisdiction because plaintiff must pursue state causes of action in state court.
II. JURISDICTION
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkanen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
In this instance, plaintiff asserts no federal statutory or constitutional basis for this suit against Bank of America or Mr. Shead based upon alleged unauthorized withdrawals from plaintiff's bank account. Plaintiff's claims do not appear to arise under federal law. To the extent plaintiff has claims against defendants, such claims arise under state law. However, federal courts have no jurisdiction over such claims in the absence of diversity jurisdiction under 28 U.S.C. § 1332. Plaintiff provides no facts which indicate that the requirements for diversity jurisdiction exists. As the party seeking to invoke this Court's jurisdiction, plaintiff has the burden to show that diversity jurisdiction exists. See Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991). Plaintiff has not carried that burden.
Courts have "a continuing obligation to examine the basis for jurisdiction." See MCG, Inc. v. Great Western Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). The Court may sua sponte raise the jurisdictional issue at any time. Id.; Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66 (5th Cir. 1999). Fed.R.Civ.P. 12(h)(3) requires that federal courts dismiss an action "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter." Because it appears that the Court lacks subject matter jurisdiction, this action should be dismissed.
III. SANCTIONS
The Court possesses the inherent power "to protect the efficient and orderly administration of justice and . . . to command respect for the court's orders, judgments, procedures, and authority." In re Stone, 986 F.2d 898, 902 (5th Cir. 1993). Included in such inherent power is "the power to levy sanctions in response to abusive litigation practices." Id. Sanctions may be appropriate when a pro se litigant has a history of submitting multiple frivolous claims. See Fed.R.Civ.P. 11; Mendoza v. Lynaugh, 989 F.2d 191, 195-97 (5th Cir. 1993). Pro se litigants have "no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets." Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986). "Abusers of the judicial process are not entitled to sue and appeal without paying the normal filing fees — indeed, are not entitled to sue and appeal, period. Abuses of process are not merely not to be subsidized; they are to be sanctioned." Free v. United States, 879 F.2d 1535, 1536 (7th Cir. 1989).
Plaintiff has filed three federal actions against Bank of America and Alvin Shead that relate to the unauthorized withdrawal of funds from plaintiff's bank account. One case was dismissed for failure to state a claim. Another was dismissed for lack of subject matter jurisdiction. The instant case has resulted in this recommendation that the case be dismissed for lack of federal jurisdiction. In view of these three unsuccessful federal filings related to the same underlying conduct by defendants, it appears prudent to warn plaintiff that abuses of the litigation process may result in sanctions, up to an including monetary sanctions and the prohibition of filing future cases except by leave of court.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court DISMISS plaintiff's complaint for lack of subject matter jurisdiction. It is further recommended that the District Court warn plaintiff that sanctions may be imposed for abusive litigation practices.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).