Bates v. Barksdale Federal Credit Union et al

Filing 5

REPORT AND RECOMMENDATION re 1 Complaint filed by Dennis Bernard Bates, Jr.: IT IS RECOMMENDED that Plaintiff's complaint be dismissed without prejudice for lack of subject matter jurisdiction. Objections to R&R due by 2/17/2009. Signed by Magistrate Judge Mark Hornsby on 1/29/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION

D E N N I S BERNARD BATES, JR. VERSUS BA RK SD A L E FEDERAL CREDIT U N I O N , ET AL

C I V I L ACTION NO. 09-cv-0120 J U D G E HICKS M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION De nnis Bernard Bates, Jr. ("Plaintiff") filed this civil action against Barksdale Federal Cred it Union and Community Bank of Louisiana. A federal court such as this one has l i m it e d jurisdiction and the power to hear only certain kinds of civil cases. The most frequent g r o u n d s for the exercise of federal court jurisdiction are (1) when the parties are citizens of d i f f e r en t states and the amount in controversy exceeds $75,000 and (2) when the plaintiff's claim relies on federal rather than state law. Plaintiff alleges that the defendant Credit Union stole $300 from an account. Plaintiff (perhaps taking a cue from a recommended dismissal o f a similar case for failure to allege the requisite amount in controversy) also makes r e f e r e n ce to a foreclosure for $75,000, but the connection between the two alleged events (if an y) is not clearly alleged. The complaint does not mention Community Bank of Louisiana o t h e r than in the caption. P l a i n ti f f does not invoke any federal statute, and there is no federal claim evident from t h e complaint. Rather, the suit appears to be a state law claim for breach of contract, c o n v e r s io n , or Louisiana statutes governing banking transactions. This court could exercise

j u r is d i c ti o n over such a state law claim only if Plaintiff and both defendants are citizens of diff eren t states and the amount in controversy exceeds $75,000. Plaintiff, as the person invoking federal jurisdiction, has the burden of overcoming t h e presumption that federal jurisdiction does not exist. Plaintiff has not squarely pleaded a federal law claim, and his complaint does not include facts that would support a finding of divers ity jurisdiction. There is no direct allegation of the citizenship of any party, but Pl ain tif f's home address and the local nature of the two defendants strongly suggest that all p a r t ie s are citizens of Louisiana. Plaintiff has not met his burden of establishing diversity o f the parties. This court should, therefore, dismiss his case for lack of subject matter jurisdictio n. Plaintiff will have to pursue his claims in a state court. S i m i l ar recommendations were made recently in Bates v. Community Bank of L o u i s i a n a, 08-cv-1457 and Bates v. Regions Bank, 08-cv-1340, in which Plaintiff asserted s i m i la r claims. Plaintiff has also filed a suit, Bates v. Sheriff of Bossier Parish, 08-cv-1455, wh ich alleges Fourth Amendment violations related to an arrest. Plaintiff is warned that filing frivolous lawsuits may have consequences beyond the mere dismissal of those suits. Plaintiff may be sanctioned, including an order that he p a y money sanctions to the court. The court may also bar Plaintiff from filing any further suits without payment in advance of the $350 filing fee, notwithstanding Plaintiff's alleged p a u p e r status. The court may not give any further warnings before imposing such sanctions

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if Plaintiff persists in filing frivolous lawsuits, which consume the court's time and prevent it from more timely addressing the issues in meritorious cases. Accordingly; I T IS RECOMMENDED that Plaintiff's complaint be dismissed without prejudice f o r lack of subject matter jurisdiction. O b j e c t io n s U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and r e c om m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc).

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T H U S DONE AND SIGNED in Shreveport, Louisiana, this 29th day of January, 2009.

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