Simmons v. Harlequin Books et al

Filing 5

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc.# 2 ] is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3). IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc.# 4 ] is DENIED AS MOOT. A separate Order of Dismissal will be filed forthwith. Signed by District Judge E. Richard Webber on 5/7/15. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NOAH HANCOCK SIMMONS, II
Plaintiff,
v.
HARLEQUIN BOOKS, et al.
Defendant.

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No. 4:15CV00712 ERW

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for leave to proceed in forma
pauperis. The motion will be granted. Additionally, having reviewed the case, the Court will
dismiss it for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3).
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 Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). 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). A complaint fails to state a claim if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

The Complaint
Plaintiff, Noah Hancock Simmons, II, acting pro se, brings this action for conversion and
a “taking,” and breach of contract against Harlequin Books and Tahra Seplowin, asserting that
these defendants converted three of his manuscripts in December of 2014. Plaintiff claims that
his demand for return of the manuscripts has been ignored. He seeks return of the manuscripts
and punitive damages between $10 and $50 million dollars. Unfortunately plaintiff has not
identified the net worth of the three manuscripts.
Discussion
The Court notes that plaintiff has failed to state the jurisdictional grounds for filing this
action in federal court. Plaintiff does not set forth any laws or constitutionally protected rights
that defendants allegedly violated. See 28 U.S.C. § 1331. Rather, all of plaintiff’s alleged
injuries arise under state laws, i.e., the torts of conversion, taking and breach of contract.
Further, even if plaintiff wanted to allege jurisdiction under 28 U.S.C. § 1332, plaintiff
has not properly alleged diversity of citizenship and the actual amount in controversy is
unspecified.1 See 28 U.S.C. § 1332 (“The district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs and is between- (1) citizens of different States. . .”2) .
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED for lack of jurisdiction
pursuant to Federal Rule of Civil Procedure 12(h)(3).
1

Plaintiff has not articulated the amount be believes he was damaged by defendants’ alleged
conduct. Moreover, plaintiff cannot merely make an unsubstantiated demand for $50 million
dollars in punitive damages and expect this to justify the amount in controversy in this matter.
2
Plaintiff has not identified the citizenship of either of the defendants in this action.
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IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [Doc.
#4] is DENIED AS MOOT.
A separate Order of Dismissal will be filed forthwith.
So Ordered this 7th day of May, 2015.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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