Ward et al v. Sisco et al

Filing 8

MEMORANDUM OPINION by Judge David J. Hale. Because Plaintiffs have failed to establish that this Court has subject-matter jurisdiction over this action, the Court will dismiss this action by separate Order.cc:counsel, plaintiffs pro se (JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
TIMOTHY WARD et al.,

Plaintiffs,

v.

Civil Action No. 3:17-cv-59-DJH
Defendants.

KATHLEEN SISCO et al.,
* * * * *
MEMORANDUM OPINION

Plaintiffs Timothy Ward and Carrie Ward filed the instant pro se action. 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. SUMMARY OF CLAIMS
Plaintiffs name the following Defendants: Kathleen Sisco; Strictly Referrals; Wilburn R.
Sisco; and Moulton and Long, PLLC A/K/A C. Mike Moulton. The complaint also names as
real parties in interest Ocwen Loan Servicing, LLC, and VA Vendee Financing. The complaint
stems from Plaintiffs’ attempt to purchase a home in Elizabethtown, Kentucky. The complaint
describes the “Nature of the Action” as follows:
[] This action is brought pursuant to
I. Kentucky Consumer Protection Act, K.R.S § 367.170, et seq.
II. Common Law for Breach of Implied Warranty
III. Common Law Breach of Express Warranty
IV. Common Law Claim Unjust Enrichment
V. Common Law Negligent Misrepresentation
VI. Common Law Fraud
In the statement of facts, Plaintiffs state that “the Defendants agreed to sell the property
for $100.000 with a $2000.00 down payment.” They further allege the following:

[] The Plaintiffs states that the Defendants Wilburn Sisco and Kathleen Sisco
stated and agreed to a 30 day warranty on the property, beginning March 11th
2016 and ending May l0th 2016. The Plaintiffs states that the Defendants agreed
to a 30 day Warranty on the property. the Defendants agreed the warranty would
cover any problems the property would have and the Defendants would pay for
the problem and repairs. The Defendants were informed about problems with the
property and breach the 30 day Warranty did not fix the problems. The Plaintiffs
states that the Defendants failed to fix and replace the window and frames that
were rooting away. There were several window that did not open, and widow
frames were rooting away, this may be a termite problem. The Plaintiff has had to
fix problems and pay for repairs, the Defendants’ refused to pay for the repairs.
The Defendants action violates the 30 day Warranty agreement.
[] The Plaintiffs states that the Defendants deliberately lied and breach the
Contract for Deed, the Defendants now are telling the Plaintiffs they are not
buying the property. The Plaintiffs states that the monthly payments were set at
$725.00 a month, with 2% going for the principle.
Plaintiffs further state that Defendants violated the Kentucky Consumer Protection Act by
placing a false ad in the newspaper concerning owner financing. Plaintiffs state that Defendants
Kathleen and Wilburn Sisco “are charging a Finance charge pursuant to 15 U.S. Code § 1605 &
12 CFR Part § 1026.4 [Finance charge 2% rate going to the principle of the house].” (Alteration
by Plaintiffs). They state that Defendants failed to inform them about an existing lien on the
property and failed to record the property lien in accordance with Kentucky’s recordation
statutes and requirements. Plaintiffs also allege that Defendants misled them and “tried to scam”
them in various other ways in connection with the transaction. They further state that
Defendants “conspired together to violate the Plaintiffs right to the property.”
As relief, Plaintiffs request that the Court declare the acts of Defendants unlawful; award
them $116,000 in damages; declare that Defendants “failed to record and perfect the lien on the
property”; and award punitive damages for Defendants’ “gross negligence and [Kentucky
Consumer Protection Act] paragraphs.”

2

II. ANALYSIS
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
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)).

3

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. 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.
Federal question jurisdiction
In the present case, Plaintiffs have not established federal question jurisdiction under 28
U.S.C. § 1331. The complaint specifically states that Plaintiffs are bringing the action for
violation of the Kentucky Consumer Protection Act and for common law claims of breach of
implied and express warranties, unjust enrichment, negligent misrepresentation, and fraud, which
are state law claims. The complaint also alleges a state law claim of breach of contract.
However, Plaintiffs have not alleged the violation of any federal statute or any federal statutory
or constitutional right. While Plaintiffs state that Kathleen and Wilburn Sisco “are charging a
Finance charge pursuant to 15 U.S. Code § 1605 & 12 CFR Part § 1026.4 . . . ,” they do not
allege a violation of these provisions or any other federal statute. For these reasons, Plaintiffs
fail to demonstrate jurisdiction under 28 U.S.C. § 1331.
Diversity jurisdiction
Additionally, Plaintiffs fail to establish diversity jurisdiction under 28 U.S.C. § 1332. To
give rise to jurisdiction under § 1332, there must be complete diversity of citizenship, and the
amount in controversy must exceed “the sum or value of $75,000, exclusive of interest and
costs[.]” 28 U.S.C. § 1332. Complete diversity requires that “each defendant [be] a citizen of a
different State [than] each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373,
(1978). Here, on the face of the complaint, such diversity does not exist. Plaintiffs, Kentucky

4

residents, assert that Defendants also reside in Kentucky. Therefore, Plaintiffs fail to
demonstrate diversity jurisdiction under 28 U.S.C. § 1332.
III. CONCLUSION
Because Plaintiffs have failed to establish that this Court has subject-matter jurisdiction
over this action, the Court will dismiss this action by separate Order.
Date:

April 5, 2017

David J. Hale, Judge
United States District Court
cc:

Plaintiffs, pro se
Counsel of record
4415.010

5