Windwolf v. U.S. Title Company et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. [Doc. 2] IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because t his Court lacks jurisdiction over plaintiff's complaint. See Fed. R. Civ. P. 12(h)(3). IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel is DENIED as moot. [Doc. 4] An appropriate Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 4/16/2013. (NCL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
PIAOWAKA C. WINDWOLF,
U.S. TITLE COMPANY, et al.,
No. 4:13-CV-43 CAS
MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff for leave to commence this action
without prepayment of the filing fee pursuant to 28 U.S.C. § 1915. Upon consideration of the
financial information provided with the motion, the Court finds that plaintiff is financially unable
to pay any portion of the filing fee. As a result, plaintiff will be granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. Additionally, the Court has reviewed the complaint and will
dismiss it pursuant to Federal Rule of Civil Procedure 12(h)(3) for lack of subject matter
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted,
or seeks monetary relief from a defendant who is immune from such relief. An action is frivolous
if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989).
An action is malicious if it is undertaken for the purpose of harassing the named defendants and not
for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
Plaintiff has filed five lawsuits in this Court within the past six months relating to a
foreclosure action that took place on a piece of real property apparently owned by plaintiff in
Franklin County, Missouri.1 In each case, plaintiff has posited a new and novel idea for attacking
the foreclosure process.
In the instant lawsuit, plaintiff asserts that the U.S. Title Company and Linda Midyett, a
notary, acted in a conspiracy to place a fraudulent power of attorney document, for a person by the
name of Juvilee M. Brinley, in the mortgage and title documents used in the foreclosure action.
Plaintiff asserts that “alteration of the instrument” should void the foreclosure action.
At the outset, the Court notes that plaintiff has failed to state the grounds for filing the instant
action in federal court. The complaint does not refer to any federal law or treaty or to any provision
of the United States Constitution. Rather, plaintiff’s only claims against defendants appear to be for
fraud related to “forgery”and violations of Missouri notary regulations. Thus, federal question
jurisdiction pursuant to 28 U.S.C. § 1331 is inapplicable.
Liberally construing the complaint as being brought under 28 U.S.C. § 1332, the Court will
dismiss the action, without prejudice, for lack of subject matter jurisdiction. The amount in
controversy is unspecified, so there is no allegation that the amount in controversy exceeds $75,000.
In addition, while the complaint suggests that plaintiff is a Missouri citizen, at least as of the time
of filing, there is no allegation as to the citizenship of the defendants, who are listed at Missouri
Windwolf v. Citigroup, Inc., 4:12-CV-2156 JAR; Windwolf v. Freddie Max, 4:12-CV-2157
JAR; Windwolf v. Hillsboro Title Company, Inc., 4:13-CV-41 CEJ; Windwolf v. Transcontinental
Title Company, 4:12-CV-42 CDP; and Windwolf v. U.S. Title Company, 4:13-CV-43 CAS.
addresses. As a result, complete diversity of citizenship under 28 U.S.C. § 1332 has not been
pleaded or established.2 See 28 U.S.C. § 1332. The action must, therefore, be dismissed for lack
of subject matter jurisdiction.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis is
GRANTED. [Doc. 2]
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint because this Court lacks jurisdiction over plaintiff’s complaint. See Fed.
R. Civ. P. 12(h)(3).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel is
DENIED as moot. [Doc. 4]
An appropriate Order of Dismissal will accompany this Memorandum and Order.
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 16th day of April, 2013.
It appears that plaintiff moved to Arkansas after she filed this action. Assuming that
plaintiff became a citizen of Arkansas after she filed this action, in diversity cases the “time-offiling” rule provides that diversity jurisdiction is not present if the parties were not diverse from the
outset, even if the plaintiff was eventually able to obtain complete diversity during the pendency of
the action. See Grupo Dataflux v. Atlas Global Group LP, 541 U.S. 567 (2004). Further, as stated
above, diversity jurisdiction is not established because the complaint contains no allegations
concerning the citizenship of the defendants.
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