Forte et al v. AT&T Phones et al

Filing 12

OPINION & ORDER: The Court dismisses Tyrese Wimberly without prejudice as a Plaintiff in this action and denies as moot the motion to withdraw (DN 11 ). The Court grants the applications to proceed without prepayment of fees (DNs 2 , 7 , 9 ) and dismisses the case for lack of subject-matter jurisdiction. cc: counsel, Plaintiffs (pro se), Defendant (JM)

Case 5:23-cv-00059-BJB Document 12 Filed 10/05/23 Page 1 of 4 PageID #: 52

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
RONNIE JOE FORTE et al.

PLAINTIFFS

v.

CIVIL ACTION NO. 5:23-cv-59-BJB

AT&T PHONES

DEFENDANT
MEMORANDUM OPINION AND ORDER
I.

A Complaint filed and signed by pro se Plaintiff Ronnie Joe Forte initiated this lawsuit.
(DN 1). The Complaint listed as additional Plaintiffs Cecil Guye, Ty’Kel Forte, and Tyrese
Wimberly, but they did not sign the Complaint. Prompted by a notice of deficiency sent by the
Clerk of Court, (DN 5), Cecil Guye and Ty’Kel Forte signed the Complaint and filed
applications to proceed without prepayment of fees (DNs 7–10).
Tyrese Wimberly did not sign the Complaint or submit an application to proceed without
prepayment of fees when given the opportunity to do so. Accordingly, the Court dismisses
Tyrese Wimberly without prejudice as a Plaintiff in this action and denies as moot the motion to
withdraw (DN 11). See Fed. R. Civ. P. 11(a) (“Every pleading, written motion, and other paper
must be signed by . . . a party personally if the party is unrepresented.”); see also Washington v.
Wolfe, No. CV 3:20-0122, 2021 WL 1197698, at *2 (M.D. Pa. Mar. 30, 2021) (after two of four
pro se plaintiffs signed the complaint, court dismissed the non-signatories under Rule 11(a));
Bland v. Sawyers, No. 2:17-CV-762, 2017 WL 4225191, at *1 (S.D. Ohio Sept. 22, 2017)
(plaintiff’s unsigned complaints were subject to dismissal without prejudice), report and
recommendation adopted, No. 2:17-CV-762, 2017 WL 11712815 (S.D. Ohio Nov. 6, 2017).

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II.
On review of the applications to proceed without prepayment of fees filed by Plaintiffs
Ronnie Joe Forte, Cecil Guye, and Ty’Kel Forte, the Court finds that Plaintiffs make the
financial showing required by 28 U.S.C. § 1915(a). The Court, therefore, GRANTS the
applications to proceed without prepayment of fees (DNs 2, 7, and 9).
III.
Because Plaintiffs are proceeding in forma pauperis, the Court must screen the
Complaint pursuant to 28 U.S.C. § 1915(e)(2) and McGore v. Wrigglesworth, 114 F.3d 601 (6th
Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the following
reasons, the Court dismisses Plaintiffs’ lawsuit.
A. STATEMENT OF CLAIMS
Plaintiffs, who are all residents of Hopkinsville, Kentucky, sue “AT&T Phones” in
Hopkinsville, Kentucky. The Complaint alleges that in February 2022 Plaintiffs purchased four
phones for $1,000 each. They allege that the phones were stolen on March 19, 2022, and that
Defendant “did everything [it] could not to honor” their contract’s theft policy. According to the
Complaint, Defendant claimed the phones were not activated, required them to obtain two police
reports, and claimed that the statute of limitations had run. They ask that Defendant be required
to honor the contract and pay each Plaintiff $1,000,000 for mental anguish.
B. STANDARD OF REVIEW
Because Plaintiffs are proceeding in forma pauperis, this Court must review the
Complaint. See § 1915(e)(2); McGore v. Wrigglesworth, 114 F.3d at 608–09. Upon review, this
Court must dismiss a case at any time if the Court determines that the action is “frivolous or
malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief from

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a defendant who is immune from such relief. § 1915(e)(2)(B). While a reviewing court must
liberally construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982), to avoid
dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its
face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
C. ANALYSIS
“Federal courts are courts of limited jurisdiction,” possessing “only that power authorized
by Constitution and statute.” 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.”). Under Rule 12(h)(3) of the Federal Rules of Civil Procedure, “If the
court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action.”
In bringing suit, plaintiffs bear the burden of establishing that subject-matter jurisdiction
exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Typically, a plaintiff
establishes a federal court’s subject-matter jurisdiction by demonstrating that a right created by
the Constitution or laws of the United States is an essential element of the claim, so that federalquestion jurisdiction exists under 28 U.S.C. § 1331, or by demonstrating that the plaintiff and the
defendant are citizens of different states and that the amount in controversy exceeds $75,000, so
that diversity jurisdiction exists under 28 U.S.C. § 1332.
Even construing the Complaint liberally as is required for pro se litigants, see Haines v.
Kerner, 404 U.S. 519, 520–21 (1972); Hill v. Lapin, 630 F.3d 468, 471 (6th Cir. 2010), it alleges
no facts indicating that the Court has either federal-question or diversity jurisdiction over this
lawsuit. Although Plaintiffs used a complaint form for federal civil-rights suits, Plaintiffs do not

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cite 42 U.S.C. § 1983 or otherwise accuse Defendant of any violation of federal law. Nor do
Plaintiffs cite any other federal statutes or United States constitutional provisions in support of
their claim, and the Court cannot discern any from the facts alleged. The Complaint, therefore,
fails to carry the Plaintiffs’ burden of establishing federal-question jurisdiction.
Additionally, Plaintiffs fail to establish diversity jurisdiction. The Complaint does not
allege that they and the Defendant are citizens of different states as § 1332 requires.
Accordingly, Plaintiffs have failed to establish that this Court has subject-matter jurisdiction over
this action.
D. CONCLUSION
For the foregoing reasons, the Court dismisses the case. The Court will enter a separate
order dismissing this lawsuit.

October 5, 2023

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