Gerwald v. GMAC Mortgage

Filing 14

REPORT AND RECOMMENDATIONS re dismissing this case without prejudice 1 Complaint filed by Anaissa Beth Gerwald. Objections to R&R due by 10/17/2012. Signed by Magistrate Judge G. R. Smith on 10/3/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ANAISSA BETH GERWALD,
Plaintiff,
V.

GMAC MORTGAGE,
Defendants.

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Case No. CV412-066

REPORT AND RECOMMENDATION
Before the Court is Anaissa Beth Gerwald's 42 U.S.C.

§

1983

complaint against GMAC Mortgage.' (Doe. 1.) Proceeding pro se and
supplying a Georgia address, she alleges that GMAC is attempting to
wrongfully foreclose upon her house in violation of an earlier settlement
agreement. (Id. at 6-7.) Her case must be DISMISSED pursuant to Fed.
R. Civ. P. 12(h)(3) (requiring dismissal if the Court determines it lacks

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The Court earlier ordered Gerwald to show cause why it should not dismiss
her case for lying on her in forma pauperis application. (Doc. 12.) It accepts her
explanation that her funds were hung up while she was detained and that she had no
intent to lie to the Court. (Doc. 13.)

subject matter jurisdiction), as she has failed to invoke a subject-matter
jurisdictional basis for this action.'
Plaintiff has filed suit using a standard 42 U.S.C. § 1983 form
complaint, but GMAC is a private company, not a state actor. Hence, that
statute has no application to her case. See 42 U.S.C. § 1983 (offering a
remedy for the deprivation of a citizen's constitutional rights by actors
operating under color of state law); see also Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)
(same basic principle applied to those acting under color of federal law).
Nor has she offered any other statutory basis for federal jurisdiction.
While she could conceivably bring a 28 U.S.C. § 1332 diversity action, her
pleading fails to set out the required elements. She discloses a Georgia
address for herself, yet she has failed to plead that the GMAC is anything

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Alternatively, her case should be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) for failure to state a claim for relief. While she ultimately paid the filing
fee, she was initially granted in formapauperis ("IFP") status. (Does. 4 (granting IFP
status), 11 (filing fee).) According to the IFP statute, any case that starts IFP remains
IFP for the purposes of case screening. 28 U.S.C. § 1915(e)(2) ("Notwithstanding any
filing fee, or any portion thereof, that may have been paid, the court shall dismiss the
case at any time if the court determines that. .
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but a Georgia resident. Nor has she pled more than $75,000 in damages.'
Absent diverse parties and damages exceeding $75,000, she cannot invoke
the Court's diversity jurisdiction. Underwriters at Lloyd's London v.

Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010); Denegal v.
DeVeaux, 2011 WL 1456183 at * 1 (S.D. Ga. Mar. 28, 2011). Gerwald's
case should be DISMISSED without prejudice for failing to put forward a
jurisdictional basis for her claim.
SO REPORTED AND RECOMMENDED this

J

day of

October, 2012.

MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

Because this is a court of limited jurisdiction, the burden is on Gerwald to
plead and prove by a preponderance of the evidence, facts supporting its existence.
Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994) (because federal
courts are courts of limited jurisdiction "[i]t is to be presumed that a cause lies outside
this limited jurisdiction, and the burden of establishing the contrary rests upon the
party asserting jurisdiction. . . .") (quotes and cite omitted); McCormick v. Aderholt,
293 F.3d 1254, 1257 (11th Cir. 2002). Those invoking diversity jurisdiction under 28
U.S.C. § 1332(a)(1), for example, bear the burden of establishing complete diversity of
citizenship -- that the plaintiff and defendant are domiciled in different states -- and
that the amount in controversy more likely than not exceeds § 1332's $75,000
jurisdictional requirement. Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1357
(11th Cir. 1996), partially abrogated on other grounds, Cohen v. Office Depot, Inc., 204
F.3d 1069, 1076-77 (11th Cir. 2000); Connally v. State Farm Fire and Gas. Co., 2012
WL 2155110 at * 12 (S.D. Ala. May 22, 2012).
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