Kenney v. Baber et al

Filing 3

ORDER granting 1 application to proceed in forma pauperis and dismissing 2 Complaint without prejudice. Signed by Judge James M. Moody Jr. on 10/06/2016. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
KIMBERLY KENNEY
VS.

PLAINTIFF
4:16CV00660 JM

RAINWATER, HOLT & SEXTON, P.A.
AND SARAH BABER

DEFENDANTS
ORDER

Plaintiff has filed the following documents pro se: (1) Application to proceed in forma
pauperis, and (2) Complaint.
There is a two-step process to be followed by the district court in considering whether a
pro se plaintiff should be permitted to proceed in forma pauperis. Martin-Trigona v. Stewart,
691 F.2d 856 (8th Cir. 1982). First there is a determination of whether the plaintiff qualifies by
economic status under 28 U.S.C. § 1915(a). If he does, the complaint is permitted to be filed.
Id. Second, assuming the allegation of poverty is not untrue, a determination is made under §
1915(e)(2)(B) of whether the cause of action stated in the complaint is frivolous or malicious,
fails to state a claim upon which relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief. If so, the complaint is to be dismissed. Id. Because it
appears that plaintiff’s economic situation qualifies her for in forma pauperis status, the Court
hereby grants plaintiff’s application to so proceed. (Docket # 1)
The Court now turns to the determination of whether, pursuant to § 1915(e)(2)(B), this
action should be dismissed because it is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief against a defendant who is immune from such
relief. A United States district court has jurisdiction over two kinds of civil cases – cases that
present a federal question and in diversity-of-citizenship cases. First, a United States district

court has jurisdiction over civil actions arising under the constitution, laws, or treatises of the
United States. 28 U.S.C. § 1331. Secondly, a United States district court has jurisdiction over
civil actions where the matter in controversy exceeds the sum of $75,000, exclusive of interest
and cost, and is between citizens of different states. 28 U.S.C. § 1332(a). Thus, a complaint in
federal court must allege a claim based upon federal law or a claim under circumstances in
which the court has diversity of citizenship jurisdiction.
Plaintiff alleges that she was involved in two automobile accidents in 2013. She was
represented by Sarah Baber, and Ms. Baber’s law firm, Rainwater, Holt & Sexton, regarding
these accidents. Plaintiff alleges that the Defendants committed malpractice by breach of
fiduciary duty, breach of contract, fraud and negligence in handling her cases. These claims are
not based upon federal law and there is no diversity of citizenship alleged. Therefore, the Court
lacks jurisdiction over Plaintiff’s claims and her Complaint must be dismissed without prejudice.
In conclusion, application to proceed in forma pauperis (ECF No. 4) is GRANTED and
her Complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS SO ORDERED this 6th day of October, 2016.
_________________________
James M. Moody Jr.
United States District Judge