Opinion
CV 116-169
11-04-2016
KENNETH J. LAWRENCE, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff commenced this case pro se and requests permission to proceed in forma pauperis ("IFP"). (Doc. nos. 1, 2.) Having considered Plaintiff's affidavit of poverty, the Court GRANTS his request to proceed IFP. If in the future, however, it appears Plaintiff's financial situation has improved, the Court may act on its own initiative to require him to pay either the entire filing fee or an appropriately determined partial filing fee. Because he is proceeding IFP, Plaintiff's complaint must be screened to protect potential defendants. Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984).
I. BACKGROUND
Taking all allegations of the complaint as true, as the Court must for purposes of this screening, the facts are as follows. On October 3, 2016, Plaintiff filed a complaint seeking to enjoin Defendant bank from foreclosing on his property at 1017 Pleasant Valley Dr., Hephzibah, GA 30815. (Doc. no. 1.) Plaintiff alleges Defendant cannot foreclose on the property because it is an "improper secured creditor," not a holder in due course, and "does not hold an enforceable equity security interest." (Id. at 2-3.) Plaintiff asks for a temporary and permanent injunction against foreclosure. (Id.)
II. DISCUSSION
A. Legal Standard for Screening
A complaint or any portion thereof may be dismissed if it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune to such relief. See 28 U.S.C. § 1915(e)(2)(B). A claim is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Moreover, "[f]ailure to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6)." Wilkerson v. H & S, Inc., 366 F. App'x 49, 51 (11th Cir. 2010).
To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations in the complaint must "state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. While Rule 8(a) of the Federal Rules of Civil Procedure does not require detailed factual allegations, "it demands more than an unadorned, the defendant unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A complaint is insufficient if it "offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action,'" or if it "tenders 'naked assertions' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 555, 557). In short, the complaint must provide a "'plain statement' possess[ing] enough heft to 'sho[w] that the pleader is entitled to relief.'" Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)).
Pleadings drafted by pro se litigants must be liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), but the Court may dismiss a complaint, or any part thereof, that is frivolous or malicious or that fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i) & (ii).
B. Federal Subject Matter Jurisdiction
Because a "federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case, and should itself raise the question of subject matter jurisdiction at any point in the litigation where a doubt about jurisdiction arises." Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). Federal courts must always dismiss cases upon determining that they lack subject matter jurisdiction, regardless of the stage of the proceedings. Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1331 n.6 (11th Cir. 2001). In order to invoke the jurisdiction of the Court, a plaintiff must properly "allege the jurisdictional facts, according to the nature of the case." McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 182 (1936).
To have jurisdiction over a case, a district court must have at least one of the three types of subject-matter jurisdiction: (1) jurisdiction pursuant to a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997). The party asserting jurisdiction has the burden of establishing that their cause lies within this limited grant of jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 114 S. Ct. 1673, 1675 (1994). For actions brought under 28 U.S.C. § 1332, the burden is on the party seeking federal jurisdiction to demonstrate that diversity exists by a preponderance of the evidence. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1340 (11th Cir. 2011). A Plaintiff must plead facts that support the existence of federal diversity jurisdiction. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002); Las Vistas Villas, S.A. v. Petersen, 778 F. Supp. 1202, 1203 (M.D. Fla. 1991).
Here, Plaintiff fails to allege federal question jurisdiction, and his claims are clearly based purely on state law foreclosure claims. (Doc. no. 1, pp. 2-3.) Indeed, Plaintiff lists only Georgia statutes as the basis for the Court's jurisdiction. (See doc no. 1, p. 2.) ("Plaintiff brings this complaint under the Jurisdiction of this court . . . [p]ursuant to O.C.G.A. 44-14-162 et. Seq., O.C.G.A. 9-11-65, O.C.G.A. 23-2-114.") Consequently, the only basis for federal jurisdiction is under 28 U.S.C. § 1332 for diversity of citizenship. However, Plaintiff has failed to allege Defendant is a citizen of another state. (Id.); see also 28 U.S.C. § 1332(a). Nor has Plaintiff alleged the amount in controversy exceeds $75,000. (Id.); see also 28 U.S.C. § 1332(a). Because Plaintiff has failed to plead any facts demonstrating he is entitled to invoke the jurisdiction of the federal courts, his complaint is subject to dismissal.
II. CONCLUSION
For the reasons set forth above, the Court REPORTS and RECOMMENDS that Plaintiff's complaint be DISMISSED, and that this case be CLOSED.
SO REPORTED AND RECOMMENDED this 4th day of November, 2016, at Augusta, Georgia.
/s/_________
BRIAN K. EPPS
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA