Zausa v. Zausa

Filing 11

OPINION AND ORDER: Pellin's 8 motion to dismiss is GRANTED, and this action is DISMISSED for lack of jurisdiction. Further, this case is frivolous and meritless, rendering plaintiff ineligible for in forma pauperis status under 28 U.S.C.
67; 1915(e)(2)(B)(i), so plaintiff's 4 motion to proceed in forma pauperis is DENIED and plaintiff is ORDERED to pay the $400 filing fee in full by 11/29/2017. Additionally, the Court ORDERS the plaintiff to show cause by 11/29/2017, as to why the court should not order plaintiff to pay Michael Pellin's attorneys' fees. Finally, plaintiff is CAUTIONED that failure to pay the filing fee and/or further attempts to assert this cause action under questionable theories of jurisdiction or without regard to the Federal Rules of Civil Procedure may lead to sanctions, possibly including restrictions on filing lawsuits in the future in this district. Signed by Senior Judge James T Moody on 11/15/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TERRI L. ZAUSA,
Plaintiff,
v.
JACK ZAUSA,
Defendant.

)
)
)
)
)
)
)
)
)

No. 2:17 CV 352

OPINION and ORDER
This action began with a “Third Party Complaint,” filed by plaintiff Terri L.
Zausa. (DE # 1.) In her complaint, she sued Jack Zausa as a defendant, and Michael
Pellin as a “Third-Party Respondent,” alleging diversity of citizenship as the basis for
jurisdiction. (Id.) Apparently, Jack Zausa once owed money to Michael Pellin in the
form of a state court judgment, and plaintiff seeks to enforce that judgment as a
“judgment creditor,” to the tune of about a million dollars. (Id.) Plaintiff sought in forma
pauperis status (DE # 4), and Michael Pellin filed a motion to dismiss (DE # 8).
Ordinarily, a plaintiff must pay a statutory filing fee to bring an action in federal
court. 28 U.S.C. § 1914(a). However, the federal in forma pauperis statute, 28 U.S.C.
§ 1915, provides indigent litigants an opportunity for meaningful access to the federal
courts despite their inability to pay the costs and fees associated with that access. To
authorize a litigant to proceed in forma pauperis, a court must make two determinations:
first, whether the litigant is unable to pay the costs of commencing the action, 28 U.S.C.
§ 1915(a)(1); and second, whether the action 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, 28 U.S.C. § 1915(e)(2)(B).
With respect to the second of these determinations, district courts have the
power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints, and courts must dismiss a
complaint if it fails to state a claim. Courts apply the same standard under
§ 1915(e)(2)(B) as when addressing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir. 2000), and in this case the
screening process dovetails with Pellin’s motion to dismiss, which is also governed by
Rule 12(b)(6).
In this case, it is impossible to tell whether plaintiff is able to pay the costs of
commencing this action, as she failed to file the proper forms establishing financial
hardship (see AO 293 (Rev. 1/15) (INND Rev. 8/16), available on the court’s website) or
submit any detailed financial information on the basis of which a decision could be
made. Even if she had, however, in forma pauperis status will not be granted because
plaintiff’s complaint is frivolous and the court lacks jurisdiction to entertain it, as the
court explains in more detail below.
As Pellin points out, this is not the first time plaintiff has pursued this matter in
federal court. In 2016, she filed a nearly identical case in the Northern District of Illinois,
No. 1:16 CV 11440 (St. Eve, J.). That case was dismissed for lack of diversity jurisdiction,
since both Terri Zausa (a plaintiff) and Jack Zausa (a defendant) were residents of
Illinois. Zausa v. Pellin, No. 16-CV-11440, 2017 WL 3730816, at *3 (N.D. Ill. Aug. 30,

2

2017). Now, plaintiff has filed her case in this district, attempting to reach the same end
result.
Plaintiff’s counsel attempts to justify jurisdiction with a skewed logic that is
nearly impossible to follow. (DE # 10 at 2: “In Illinois there was no complete diversity
between the Plaintiff and Defendant. However, we are not in Illinois. In that, now
complete diversity is measured from Indiana, where there is complete diversity
between Plaintiff and Pellin, and that Defendant does not destroy complete diversity in
Indiana.”) Plaintiff’s interpretation of diversity jurisdiction has no basis in existing law.
As it was when Judge St. Eve ruled in plaintiff’s other case, 28 U.S.C. § 1332 requires
“complete diversity,” which means that no plaintiff may be from the same state as any
defendant. Altom Transp., Inc. v. Westchester Fire Ins. Co., 823 F.3d 416, 419–20 (7th Cir.
2016). It is undisputed that Terri Zausa (plaintiff) and Jack Zausa (a defendant) are both
residents of Illinois. Thus, this court lacks jurisdiction over this action and it must be
dismissed.
Even without the jurisdictional issue, this litigation is riddled with procedural
and substantive problems. Most egregiously, plaintiff has named Pellin as a “ThirdParty Respondent,” but she does not have the right to do so. As Federal Rule of Civil
Procedure 14 explains, the right to name third parties is reserved for defendants, or
plaintiffs against whom a claim has been alleged, which is not the case here. Plaintiff
improperly drew Pellin into this lawsuit, requiring him to defend himself against
another lawsuit. At this point, it is impossible to tell whether the initiation of this action

3

was the result of simple neglect or bad faith. But, needless to say, plaintiff’s attempt at a
“do-over” of the litigation that failed before Judge St. Eve will not be successful before
the undersigned.
For the reasons stated above, Pellin’s motion to dismiss (DE # 8) is GRANTED,
and this action is DISMISSED for lack of jurisdiction. Further, this case is frivolous and
meritless, rendering plaintiff ineligible for in forma pauperis status under 28 U.S.C.
§ 1915(e)(2)(B)(i), so plaintiff’s motion to proceed in forma pauperis (DE # 4) is DENIED,
and plaintiff is ORDERED to pay the $400 filing fee in full by November 29, 2017.
Additionally, pursuant to Federal Rule of Civil Procedure 11(c)(3), the court
ORDERS plaintiff to show cause by November 29, 2017, as to why the court should not
order plaintiff to pay Michael Pellin’s attorneys’ fees in light of Rule 11(b)(1), which
prohibits parties from using litigation to harass, cause unnecessary delay, or needlessly
increase the cost of litigation, and Rule 11(b)(2), which requires that claims and other
legal contentions be warranted by existing law or by a nonfrivolous argument for an
extension of existing law.
Finally, plaintiff is CAUTIONED that failure to pay the filing fee and/or further
attempts to assert this cause of action under questionable theories of jurisdiction or
without regard to the Federal Rules of Civil Procedure may lead to sanctions, possibly
including restrictions on filing lawsuits in the future in this district.
SO ORDERED.
Date: November 15, 2017
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT