SEGAL et al v. EDWARD ROSE OF INDIANA LLC

Filing 6

Entry and Order to Show Cause - The plaintiff's motion to proceed in forma pauperis [dkt. 2 ] is granted. The assessment of even a partial filing fee is not feasible at this time. For the reasons explained above, the complaint fails to contain a legally viable claim over which this Court could exercise subject matter jurisdiction. The plaintiff has through March 24, 2017, to show cause why this action should not be dismissed for lack of jurisdiction. (See Entry.) Copy sent to Plaintiffs via U.S. Mail. Signed by Judge Tanya Walton Pratt on 2/23/2017.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SAMUEL SEGAL, JUDITH JOHNSON,
Plaintiffs,
vs.
EDWARD ROSE OF INDIANA LLC,
Defendant.

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) No. 1:17-cv-0494-TWP-MPB
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Entry and Order to Show Cause
I.
The plaintiff’s motion to proceed in forma pauperis [dkt. 2] is granted. The assessment of
even a partial filing fee is not feasible at this time.
II. Screening
Plaintiffs Samuel Segal and Judith Johnson filed this civil action against Edward Rose of
Indiana LLC for an alleged breach of contract claim. Subject to esoteric exceptions not implicated
by the circumstances of this case, “[a] federal court may exercise jurisdiction where: 1) the
requirements for diversity jurisdiction set forth in 28 U.S.C. § 1332 are met; or 2) the matter arises
under the Constitution, laws, or treaties of the United States as provided in 28 U.S.C. § 1331.”
Barringer-Willis v. Healthsource North Carolina, 14 F. Supp. 2d 780, 781 (E.D.N.C. 1998). “‘A
case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory
or constitutional power to adjudicate the case.’” Home Builders Ass'n of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension
Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). The Court of Appeals has repeatedly held that “the

party invoking federal jurisdiction bears the burden of demonstrating its existence.” See Hart v.
FedEx Ground Pkg. Sys. Inc., 457 F.3d 675, 679 (7th Cir. 2006).
Here, there is no allegation of conduct which could support the existence of federal
question jurisdiction. See Williams v. Aztar Ind. Gaming Corp., 351 F.3d 294, 298 (7th Cir.
2003)(explaining federal courts may exercise federal-question jurisdiction when a plaintiff’s right
to relief is created by or depends on a federal statute or constitutional provision). The plaintiffs
allege they notified the defendant of their intent to move out of their apartment and the defendant
assessed a termination penalty against them. The plaintiffs appear to only be asserting a state law
claim against the defendants for breach of contract. Similarly, there is no allegation of diversity of
citizenship. See Denlinger v. Brennan, 87 F.3d 214, 217 (7th Cir. 1996) (holding that failure to
include allegations of citizenship requires dismissal of complaint based on diversity jurisdiction).
Further, to be liable under 42 U.S.C. § 1983, the defendant must be acting under color of
state law. Case v. Milewski, 327 F.3d 564, 566 (7th Cir. 2003). Here, the plaintiffs do not allege,
nor can it be plausibly inferred from the complaint, that the defendant is a state actors. Accordingly,
the plaintiffs cannot sue the defendant for constitutional violations under 42 U.S.C. § 1983.
For the reasons explained above, the complaint fails to contain a legally viable claim over
which this Court could exercise subject matter jurisdiction. The plaintiff has through March 24,
2017, to show cause why this action should not be dismissed for lack of jurisdiction.
IT IS SO ORDERED.
Date: 2/23/2017

Distribution:
JUDITH JOHNSON
1839 Portage Ct.
Apt. A
Indianapolis, IN 46227
SAMUEL SEGAL
1839 Portage Ct.
Apt. A
Indianapolis, IN 46227