Sims et al v. Linden

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 13 Report and Recommendations in its entirety as the finding of this Court; Plaintiffs' Objection 15 is overruled, and Plaintiffs claims are dismissed without prejudice for lack of subject-matter jurisdiction. A separate final judgment will be entered pursuant to Federal Rule of CivilProcedure 58. Signed by District Judge Halil S. Ozerden on 9/21/17. (RLW) Modified on 9/21/2017 to add additional verbiage (RLW).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DALE SIMS and SHAMIS SIMS

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v.
HOWARD T. LINDEN

PLAINTIFFS
Civil No. 1:17cv22-HSO-JCG
DEFENDANT

ORDER OVERRULING PLAINTIFFS’ OBJECTION [15], ADOPTING
MAGISTRATE JUDGE’S [13] REPORT AND RECOMMENDATION, AND
DISMISSING PLAINTIFFS’ CLAIMS WITHOUT PREJUDICE
This matter comes before the Court on the Report and Recommendation [13]
of United States Magistrate Judge John C. Gargiulo, entered in this case on May
15, 2017. After the Magistrate Judge conducted a screening hearing on March 9,
2017, based upon his review of the record and relevant legal authority, the
Magistrate Judge recommended that Plaintiffs’ claims be dismissed without
prejudice for lack of subject-matter jurisdiction. R. & R. [13] at 6. Plaintiffs have
filed what has been docketed as an Objection [15] to the Report and
Recommendation and have filed various other documents since entry of the Report
and Recommendation.
After thoroughly reviewing Plaintiffs’ Objection [15] and other filings, the
Magistrate Judge’s Report and Recommendation [13], the record, and relevant legal
authority, the Court finds that Plaintiffs’ Objection [15] should be overruled and
that the Magistrate Judge’s Report and Recommendation [13] should be adopted as
the finding of the Court. Plaintiffs’ claims will be dismissed without prejudice for
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lack of subject-matter jurisdiction.
I. BACKGROUND
Plaintiffs Dale Sims (“Ms. Sims”) and Shamis Sims (“Mr. Sims”) filed a pro se
Complaint [1] in this Court on January 27, 2017, naming Howard T. Linden (“Mr.
Linden”) as the sole Defendant. Compl. [1] at 1. Ms. Sims signed the Complaint,
but Mr. Sims did not.
According to the Complaint, Mr. Linden is an attorney in Michigan who
allegedly performed legal work on behalf of Mr. Sims’ or Mr. Sims’ father’s estate.
Plaintiffs assert claims related to certain actions taken by Mr. Linden regarding
monies Mr. Sims received through his father’s estate and a trust fund, which
apparently expired when Mr. Sims turned 18. Id. at 4.
old.

See Mr. Sims’ Letter [20] at 1.

Mr. Sims is now 37 years

The Complaint appears to raise state-law

claims related to Mr. Linden’s legal work and actions taken during the 1990s.
Based upon the record, both Mr. Sims and Mr. Linden appear to be citizens of
Michigan. See, e.g., Compl. [1] at 3; Attachment [17] at 1; Am. Mot. [18] at 5.
On March 9, 2017, the Magistrate Judge conducted a screening hearing. See
Mar. 9, 2017, Minute Entry. While Mr. Sims did not appear at the hearing due to
his incarceration in Michigan, Ms. Sims testified at the hearing that both Mr.
Linden and Mr. Sims are citizens of Michigan.

R. & R. [13] at 4.

II. DISCUSSION
A.

Standard of Review
Where no party has objected to the Magistrate Judge’s Report and

Recommendation, the Court need not conduct a de novo review of it.
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28 U.S.C. '

636(b)(1) (“a judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings and recommendations to which objection
is made”). In such cases, the Court applies the “clearly erroneous, abuse of
discretion and contrary to law” standard of review. United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989).
Because Plaintiffs have filed what has been docketed as a written Objection
[15] to the Magistrate Judge’s Report and Recommendation, the Court “make[s] a
de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). “Such
review means that this Court will examine the entire record and will make an
independent assessment of the law.” Lambert v. Denmark, Civil No. 2:12-cv-74KS-MTP, 2013 WL 786356, *1 (S.D. Miss. Mar. 1, 2013). In conducting a de novo
review, the Court is not “required to reiterate the findings and conclusions of the
magistrate judge.” Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
B.

The Magistrate Judge’s Report and Recommendation should be adopted.
Plaintiffs have not submitted any evidence to contradict the Magistrate

Judge’s finding that complete diversity of citizenship is lacking, nor do they argue
that there is complete diversity of citizenship. Instead, Plaintiffs’ filings since the
entry of the Magistrate Judge’s Report and Recommendation appear to focus upon
the amount in controversy requirement of 28 U.S.C. § 1332(a). See, e.g.,
Documents [22], [21], [20].
Because no objection was made as to the lack-of-diversity finding, the Court
need not conduct a de novo review of that finding. See Wilson, 864 F.2d at 1221.
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However, even under a de novo review, the Court concludes that the Magistrate
Judge’s finding that the parties are not completely diverse is supported by the
record. The Court concludes that Mr. Sims and Mr. Linden are both citizens of
Michigan. Complete diversity of citizenship is lacking, and Plaintiffs have not
stated a federal claim. The Court will adopt the Magistrate Judge’s Report and
Recommendation [13] as the opinion of this Court and will dismiss Plaintiffs’ claims
without prejudice for lack of subject-matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(h)(3).
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Plaintiffs’
Objection [15] is OVERRULED, and the Report and Recommendation [13] of
United States Magistrate Judge John C. Gargiulo, entered on May 15, 2017, is
ADOPTED in its entirety as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiffs’ claims
are DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction.
A separate final judgment will be entered pursuant to Federal Rule of Civil
Procedure 58.
SO ORDERED AND ADJUDGED, this the 21st day of September, 2017.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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