Rivera v. Highsmith et al

Filing 8

REPORT AND RECOMMENDATIONS dismissing 7 Amended Complaint filed by Catherine T. Rivera, and GRANTING 2 and 5 MOTION for Leave to Proceed in forma pauperis filed by Catherine T. Rivera Objections to R&R due by 4/11/2017. Signed by Magistrate Judge G. R. Smith on 3/28/17. (trb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CATHERINE T. RIVERA,
Plaintiff,
v.
ANNA HIGHSMITH, and
LEM HIGHSMITH,
Defendants.

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FILED
Scott L. Poff, Clerk
United States District Court

By tblanchard at 2:08 pm, Mar 28, 2017

CV417-007

REPORT AND RECOMMENDATION
Pro se plaintiff Catherine Rivera brought this case to protect her
alleged rights as a life tenant, among other claims. See docs. 1 & 4. Her
original Complaint failed to establish this Court’s subject matter
jurisdiction and her application to proceed in forma pauperis (IFP) failed
to establish her indigency. See docs. 1 & 2. The Court ordered her to
amend her Complaint and supplement her application, doc. 3, and she
complied, docs. 4 & 5. Although it appears that she is indigent, the
Complaint fails to establish this Court’s subject matter jurisdiction.
Accordingly, her IFP motion is GRANTED , docs. 2 & 5, but her
Complaint should be DISMISSED .

As the Court’s previous Order explained, federal courts are courts
of limited jurisdiction, and a plaintiff must overcome a presumption that
the federal court lacks jurisdiction. Kokkonen v. Guardian Life Ins. Co.

of Am. , 511 U.S. 375, 377 (1993). “In a given case, a federal district court
must have at least one of three types of subject matter jurisdiction: (1)
jurisdiction under 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) (cites omitted). Courts have an
obligation to investigate the basis of their jurisdiction, see, e.g., Arbaugh

v. Y&H Corp. , 546 U.S. 500, 514 (2006), and if that’s lacking, then “the
court must dismiss the action,” Fed. R. Civ. P. 12(h)(3).
Rivera alleges that this Court has jurisdiction based on the
presentation of a federal question. 1 See doc. 4 at 6, 8. But the facts she

1

Her amended allegations show that this Court does not have diversity jurisdiction.
Diversity jurisdiction requires, among other things, that the parties are “citizens of
different States.” 28 U.S.C. § 1332(a)(1). “Citizenship is the equivalent of ‘domicile’
for purposes of diversity jurisdiction . . .” which “is the place of his true, fixed, and
permanent home and principal establishment, and to which he has the intention of
returning whenever he is absent therefrom.” McCormick v. Aderholt , 293 F.3d 1254,
1257-58 (11th Cir. 2002). Rivera alleges that both she and Anna Highsmith reside in
Savannah, Georgia. Doc. 4 at 2. Thus both appear to be citizens of the State of
Georgia, precluding diversity jurisdiction.

2

alleges fail to support that. She must plead a specific statutory grant of
jurisdiction or that this case arises “under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. “Whether a claim
arises under federal law . . . is generally determined by the well-pleaded
complaint rule, which provides that federal jurisdiction exists only when
a federal question is presented on the face of the plaintiff’s properly
pleaded complaint.” Smith v. GTE Corp. , 236 F.3d 1292, 1310 (11th Cir.
2001) (quotes and cite omitted).
Rivera’s allegations suggest 2 that she seeks to vindicate her rights
as a life tenant in the property where she lives or lived, and that
Highsmith breached a contract. See doc. 4 at 3-5. She also alleges that
2

Rivera’s allegations, even as amended, are hardly clear. Where a plaintiff has been
allowed to proceed without paying the full filing fee, the Court must “dismiss the case
at any time, if the court determines that . . . [it] fails to state a claim on which relief
can be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). Although Rivera’s allegations are
cogent enough for the Court to discern their general thrust, it is not clear that they
are sufficient to state a claim. See, e.g., Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (a
viable “complaint must contain sufficient factual matter, accepted as true to state a
claim to relief that is plausible on its face.” (quotes and cite omitted)). But since the
Court’s subject matter jurisdiction is not sufficiently established, further analysis of
the claims’ factual bases is unnecessary.
In addition to the amended Complaint Rivera submitted to comply with the
Court’s directive, she has also submitted a second amended Complaint. That
document is a printout of her original filed Complaint with additional marginal
notations. Doc. 7. Several of the notations list Mary Highsmith among the
defendants, although there are no clear allegations against her. Id. at 1, 6. Whatever
Rivera’s intent in submitting the second amended Complaint, like the first two, it
fails to show any basis for this Court’s jurisdiction.

3

Anna Highsmith “took monies from [her] trust fund.” Id. at 4. All of
these claims are creatures of state, not federal, law. 3 See, e.g., O.C.G.A.
§§ 44-6-80 - 44-6-90 (governing “life estates” in real property); O.C.G.A.
§§ 53-12-1 et seq. (The Revised Georgia Trust Code of 2010). Since no
federal claims appear on the face of her Complaint, she has not overcome
the presumption against jurisdiction, so her Complaint should be

DISMISSED .
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court’s Local Rule 72.3. Within 14 days of
service, any party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned “Objections to Magistrate Judge’s Report and
Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.

3

Rivera has attached a printout referencing IRS regulations concerning the
treatment of life tenancies for tax purposes. See doc. 4 at 8. At the bottom of the
printout, Rivera has written “[m]ore proof federal law [sic].” Id. However, even
liberally construed, Rivera’s allegations do not implicate federal tax law.
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After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp. ,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S. , 612 F. App’x
542, 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED , this 28th day of
March, 2017.

UNITED STATES MAGISTRATE ILJDGE
SOUTHERN DISTRICT OF GEORGIA

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