Doucette v. DeMarteo

Filing 11

Judge Richard G. Stearns: ORDER entered. MEMORANDUM AND ORDER for the reasons stated above, and for all the reasons previously set forth in the December 24, 2015 Memorandum and Order, it is hereby Ordered that this action is DISMISSED in its entirety pursuant Fed. R. Civ. P. 12(h)(3) for lack of subject matter jurisdiction.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No. 15-14166-RGS
ROBIN DOUCETTE
v.
JAMES DEMARTEO
MEMORANDUM AND ORDER
February 24, 2016
STEARNS, D.J.
For the reasons stated below, this action is dismissed for lack of subject matter jurisdiction.
BACKGROUND
On December 24, 2015, this Court issued a Memorandum and Order in this pro se action
granting plaintiff’s motion for leave to proceed in forma pauperis and directing plaintiff to file an
amended complaint providing this court with subject matter jurisdiction. See Docket No. 5. The
December Memorandum and Order stated that this court lacks subject matter jurisdiction because
no federal question is presented and, to the extent there is diversity jurisdiction, the amount in
controversy does not exceed $75,000. Id.
On January 6, 2016, plaintiff filed a one-page amended complaint. See Docket No. 7. One
week later, on January 13, 2016, she filed a second motion for leave to proceed in forma pauperis.
See Docket No. 8.

Earlier this week, she filed additional documents, including a copy of a

judgment for plaintiff dated February 10, 2016, in the amount of $5,213.51 against James Dematteo.
See Docket No. 10-12.

DISCUSSION
In her amended complaint, plaintiff again alleges that defendant was a trusted friend who
overcharged plaintiff for furniture purchases he made on her behalf. Plaintiff alleges that she has
multiple sclerosis and only recently discovered that defendant is in New Mexico.
After careful review of the amended complaint, this Court finds that there are no facts
alleged that would alter the prior findings set forth in the December Memorandum and Order.
Plaintiff does not specify the claims against the defendant and does not clearly identify the
jurisdictional basis for this action as requested by the December Memorandum and Order.
Finally, to the extent plaintiff may be seeking execution of the state court judgment, the
proper procedure would be for plaintiff to seek the appropriate remedy in a state court under the
relevant execution of judgment law. In Massachusetts, special rules apply to executions in small
claims actions and a plaintiff may not obtain an execution until after a small claims payment hearing.
See Rule 7(k), Uniform Small Claims Rules. Here, a payment review has already been scheduled
for March 23, 2016 in small claims magistrate session. See Docket No. 10-12.
ORDER
ACCORDINGLY, for the reasons stated above, and for all the reasons previously set forth
in the December 24, 2015 Memorandum and Order, it is hereby Ordered that this action is
DISMISSED in its entirety pursuant Fed. R. Civ. P. 12(h)(3) for lack of subject matter jurisdiction.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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