Green v. Ballinger

Filing 4

MEMORANDUM OPINION AND ORDER by Senior Judge John G. Heyburn II granting 3 Motion for Leave to Proceed in forma pauperis and concluding that the Court lacks subject-matter jurisdiction over this action. The Court will enter a separate Order of dismissal. cc: Plaintiff, pro se; Defendant (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MICHAEL J. GREEN

PLAINTIFF

v.

CIVIL ACTION NO. 3:15CV-178-JGH

JAMES BALLINGER,
ATTORNEY FOR AMERICAN TAX FUNDING, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Michael J. Green filed a pro se complaint (DN 1) along with an application to
proceed without prepayment of fees (DN 3).
Upon consideration, IT IS ORDERED that the application (DN 3) is GRANTED.
Rule 12(h)(3) of the Federal Rules of Civil Procedure provides, “If the court determines
at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” A review
of the complaint reveals that this Court lacks subject-matter jurisdiction. Therefore, the Court
will dismiss the action.
I.
Plaintiff filed his complaint on a court-approved form. As Defendant, he names James
Ballinger, Attorney for American Tax Funding, LLC. As the grounds for filing his case in
federal court, Plaintiff writes, “(BULLY-ING) RETALIATION--HARMING SOMEONE IN
RETALIATION FOR SOMETHING HARMFUL THAT THEY, THEM SELF’S HAVE
DONE. AND TO STOP THE SALE OF REALESTATE PROPERTY IN HOUSE AND
LAND.” In the caption of the complaint form, Plaintiff references “08-CI-10349,” which
appears to be a state-court civil action number.

Plaintiff’s statement-of-claims portion of the complaint form is not a model of clarity.
Therefore, the Court quotes in toto:
Told Plaintiff’s Attorney That after contacting the ATTRONEY
GENERAL”S OFFICE-SPECIAL INVESTIGATIONS DIVISION and
CONSUMER PROTECTION, and other agency’s that the Plaintiff’s way of
figuring is wrong, AND is as a loan shark. The amount owing is not
correct. And payment of taxes are paid starting with the oldest first of
taxes. In ayear’s time I have maded, every month with out missing any
payment, starting with first payment of $1000,oo dollars, as of todays date,
I have payed $2600,00 dollars. The very day that WHAS 11 NEWS had a
special news sectional about Attorney’s not earning theiring their attroney
fee’s, as well trying to charge additional fee’s for up to date BALANCES. I
MICHAEL GREEN will keep on paying each Month untill this case is over.
The Plaintiff letter was dated Jan.7,2015 to the Commissioner’s office, to
set Sale Date for MARCH 24 2015 My letter was mailed to the Plaintiff on
Dec. 9 2014. Plaintiff is activating from RETALIATION BULLY-ing from
I contracting those agencys. I should have a settlement from a civil lawsuit
around May to July at the lastest. an lien has been applied to that civil suit
in 2013, the first $1000 payment. There is no good reason for this realstate
property sale. SALE NEEDS TO STOP.
As relief, Plaintiff asks the Court to “immediately stop or hold an stay on sale of
realstate.” He also indicates that he wants a “civil Suit against Attorney James Ballinger,
American tax funding falsely filling creditors that was not Mr.Green and limitions that run out
time Bully-ing the Re taliation to [Plaintiff] and his involvement of actions caused by this
forecloser Civil Suit.”
II.
Pro se pleadings are to be held to a less stringent standard than formal pleadings drafted
by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991). However, “[o]ur duty to be ‘less stringent’ with pro se complaints does not
require us to conjure up unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979)
(citation omitted). And this Court is not required to create a claim for Plaintiff. Clark v. Nat’l
2

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would
require the Court “to explore exhaustively all potential claims of a pro se plaintiff, [and] would
also transform the district court from its legitimate advisory role to the improper role of an
advocate seeking out the strongest arguments and most successful strategies for a party.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
It is axiomatic that federal district courts are courts of limited jurisdiction, and their
powers are enumerated in Article III of the Constitution. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994); Hudson v. Coleman, 347 F.3d 138, 141 (6th Cir. 2003) (“[I]t is
well established that federal courts are courts of limited jurisdiction, possessing only that power
authorized by the Constitution and statute.”). “Jurisdiction defines the contours of the authority
of courts to hear and decide cases, and, in so doing, it dictates the scope of the judiciary’s
influence.” Douglas v. E.G. Baldwin & Assoc. Inc., 150 F.3d 604, 606 (6th Cir. 1998), overruled
on other grounds by Cobb v. Contract Transp., Inc., 452 F.3d 543, 548-49 (6th Cir. 2006).
Moreover, federal courts have an independent duty to determine whether they have jurisdiction
and to “police the boundaries of their own jurisdiction.” Douglas, 150 F.3d at 607 (citing
Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir. 1997)).
The party who seeks to invoke a federal district court’s jurisdiction bears the burden of
establishing the court’s authority to hear the case. Kokkonen, 511 U.S. at 377. There are two
ways a federal district court may have jurisdiction over a case. Douglas, 150 F.3d at 607. The
first is through federal-question jurisdiction under 28 U.S.C. § 1331, and the second is through
diversity jurisdiction under 28 U.S.C. § 1332.

3

Under the federal-question statute, “[t]he district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. Plaintiff does not specify any cause of action arising under the Constitution, laws, or
treaties of the United States.1 He, therefore, fails to establish this Court’s federal-question
jurisdiction.
To the extent Plaintiff may be attempting to assert any state-law claim, diversity
jurisdiction under 28 U.S.C. § 1332 does not exist because Plaintiff alleges neither the requisite
amount in controversy, see § 1332(a) (providing that “the matter in controversy exceeds the sum
or value of $75,000, exclusive of interest and costs”), nor that he and Defendant are diverse in
citizenship. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (“[D]iversity
jurisdiction does not exist unless each defendant is a citizen of a different State from each
plaintiff.”).
For the foregoing reasons, the Court will enter a separate Order dismissing the action.
Date:

March 23, 2015

cc:

Plaintiff, pro se
Defendant
4412.005

1

Even if the Court had subject-matter jurisdiction, the Court would abstain from interfering in an on-going,
state-court action. See Younger v. Harris, 401 U.S. 37 (1971).

4