Opinion
3:22-cv-2803-X-BN
02-14-2023
CANDACE SEARCY, Plaintiff, v. PROGRESSIVE INSURANCE, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Candace Searcy filed a pro se complaint for damages against Progressive Insurance, alleging that, during a trial in Tarrant County in which she was suing a Progressive insured the insured “committed perjury by lying about the speed of the accident, lying about leaving the scene of an accident, and lying to the police” and “verbally assaulted” her by calling her a racial slur, which she asserts “is a federal hate crime and is a federal offense.” Dkt. No. 3. United States District Judge Brantley Starr referred Searcy's complaint to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference. Defendant Progressive County Mutual Insurance Company, the entity that Searcy identifies as Progressive Insurance, moves to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Dkt. Nos. 13, 14. And Searcy responded to the motion, see Dkt. No. 15, in addition to filing numerous motions, see Dkt. Nos. 6, 8-10, 16-18.
The undersigned now enters these findings of fact, conclusions of law, and recommendation that the Court should grant the motion under Rule 12(b)(1) and dismiss this lawsuit for lack of jurisdiction.
Discussion
“‘Federal courts are courts of limited jurisdiction,' possessing ‘only that power authorized by Constitution and statute.'” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); see also Bowles v. Russell, 551 U.S. 205, 212 (2007) (“Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider.”); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims.”).
They must therefore “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). Similarly, “[t]he burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist” where the case is filed in federal court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citations omitted).
Like here, where a defendant files a Rule 12(b)(1) motion to dismiss, the attack on jurisdiction is considered “facial,” so the Court need look only to the sufficiency of the allegations of the plaintiff's complaint, or to the complaint as supplemented by undisputed facts, all of which are presumed to be true. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981). And, “[w]hen a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming, 281 F.3d at 161. “This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. The court's dismissal of a plaintiff's case because the plaintiff lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction.” Id. (citations omitted).
Under their limited jurisdiction, federal courts generally may only hear a case if it involves a question of federal law or where diversity of citizenship exists between the parties. See 28 U.S.C. §§ 1331, 1332.
In cases invoking jurisdiction under Section 1332, each plaintiff's citizenship must be diverse from each defendant's citizenship, and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a), (b). This amount “is determined by the amount of damages or the value of the property that is the subject of the action.” Celestine v. TransWood, Inc., 467 Fed.Appx. 317, 319 (5th Cir. 2012) (per curiam) (citing Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 347 (1977)). And, “[f]or diversity purposes, state citizenship is synonymous with domicile. A change in domicile requires: ‘(1) physical presence at the new location and (2) an intention to remain there indefinitely.'” Dos Santos v. Belmere Ltd. P'ship, 516 Fed.Appx. 401, 403 (5th Cir. 2013) (per curiam) (citations omitted); see also Preston v. Tenet Healthsystem Mem'l Med. Ctr., 485 F.3d 793, 797-98 (5th Cir. 2007) (“In determining diversity jurisdiction, the state where someone establishes his domicile serves a dual function as his state of citizenship.... Domicile requires the demonstration of two factors: residence and the intention to remain.” (citing Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954))).
“The basis for diversity jurisdiction must be ‘distinctly and affirmatively alleged.'” Dos Santos, 516 Fed.Appx. at 403 (quoting Mullins v. TestAmerica, Inc., 564 F.3d 386, 397 (5th Cir. 2009)). The United States Court of Appeals for the Fifth Circuit has therefore held “that a ‘failure to adequately allege the basis for diversity jurisdiction mandates dismissal.'” Id. (quoting Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir. 1991)).
Under Section 1331, federal question jurisdiction “exists when ‘a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'” Borden v. Allstate Ins. Co., 589 F.3d 168, 172 (5th Cir. 2009) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 27-28 (1983)); see also In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (“A federal question exists ‘if there appears on the face of the complaint some substantial, disputed question of federal law.'” (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995))).
The “‘creation' test ... accounts for the vast bulk of suits under federal law.” Gunn, 568 U.S. at 257 (citation omitted). But
“a federal court [is also] able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law, and thus
justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.” That is to say, “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.”Perez v. Se. SNF, L.L.C., No. 21-50399, 2022 WL 987187, at *3 (5th Cir. Mar. 31, 2022) (per curiam) (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005), then Gunn, 568 U.S. at 258).
Here, the complaint does not specify an amount in controversy. See Dkt. No. 3. But, in response to the motion to dismiss (not itself a pleading), Searcy states that she is “seeking over $75,000 in damages for this hit and run accident which is also a felony.” Dkt. No. 15. Still, she fails to establish jurisdiction under Section 1332, because she has not shown that there is complete diversity.
And, insofar as Searcy believes that there is federal question jurisdiction under Section 1331 by alleging “a federal hate crime,” Dkt. No. 3 at 1; or by alleging that “[p]erjury is a federal charge and [Progressive committed perjury ... on behalf of [its insured]”; or by alleging that “Progressive represented the defendant and emboldened him to break the law and commit federal crimes,” Dkt. No. 15 at 1, “decisions whether to prosecute or file criminal charges are generally within the prosecutor's discretion, and, as a private citizen, [Searcy] has no standing to institute a federal criminal prosecution and no power to enforce a criminal statute,” Gill v. State of Tex., 153 Fed.Appx. 261, 262-63 (5th Cir. 2005) (per curaim) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); United States v. Batchelder, 442 U.S. 114, 124 (1979)); see also Lefebure v. D'Aquilla, 15 F.4th 650, 654 (5th Cir. 2021) (In Linda R.S., “the Court repeatedly emphasized ‘the special status of criminal prosecutions in our system.' It is a bedrock principle of our system of government that the decision to prosecute is made, not by judges or crime victims, but by officials in the executive branch. And so it is not the province of the judiciary to dictate to executive branch officials who shall be subject to investigation or prosecution.... As a result, courts across the country have dutifully enforced this rule in case after case - refusing to hear claims challenging the decision not to investigate or prosecute another person.” (collecting cases; citations omitted)).
This lack of standing means that Searcy may “not assert a valid basis for federal question jurisdiction” by relying “on federal criminal statutes only.” Robinson v. Pulaski Tech. Coll., 698 Fed.Appx. 859 (8th Cir. 2017) (per curiam) (citations omitted).
Relatedly, insofar as Searcy intends to bring a civil claim under a criminal statute, she fails to include allegations showing that she has a private right of action under any statute on which she relies. See Ennis Transp. Co. Inc. v. Richter, No. 3:08-cv-2206-B, 2009 WL 464979, at *1 (N.D. Tex. Feb. 24, 2009) (“It is well established that generally there is no private cause of action for the violation of a federal criminal statute, and thus no jurisdiction for federal courts to preside over a suit between private parties when the only federal law allegedly violated is criminal. In rare circumstances, however, where a criminal statute has ‘a statutory basis for inferring' the existence of a civil action, violation of a criminal statute may give rise to a private cause of action.” (citations omitted)); see, e.g., Tucker v. U.S. Court of Appeals for Tenth Circuit, 815 Fed.Appx. 292, 294 (10th Cir. 2020) (“Sections 241 and 242 are criminal statutes that do not provide for private civil causes of action.” (citations omitted)).
Recommendation
The Court should grant the motion to dismiss [Dkt. No. 13] under Federal Rule of Civil Procedure 12(b)(1) and dismiss this case for lack of subject matter jurisdiction.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).