Howard v. James B Nutter & Company et al

Filing 4

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that this action will be dismissed for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). IT IS FURTHER ORDERED that alternatively, this action will be dismissed due to plain tiff's failure to comply with this Court's March 14, 2016 Memorandum and Order. See Fed.R.Civ.P. 41(b). A separate Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on 4/4/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHEVALIER PEREE HOWARD,
Plaintiff,
v.
JAMES B. NUTTER & COMPANY, et al.,
Defendants.

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No. 4:16CV336 CDP

MEMORANDUM AND ORDER
Before the Court is plaintiff Chevalier Peree Howard’s complaint, which was originally filed
as a miscellaneous action in this Court. The Court has reviewed a response filed by plaintiff Mr.
Howard on March 25, 2016, and this matter will be dismissed for lack of subject matter jurisdiction.
See Fed.R.Civ.P. 12(h)(3). As an alternative basis, the Court will dismiss this action because
plaintiff has failed to comply with the Court’s March 14, 2016 Memorandum and Order.
Background
According to the original complaint, filed in this Court on March 8, 2016, James B. Nutter
& Company foreclosed on the property in Florissant, Missouri, on December 7, 2015. On February
22, 2016, James B. Nutter & Company filed an unlawful detainer action against Toni Wade, Mary
Roe and John Doe defendants in St. Louis County Court. See James B. Nutter & Company v. Toni
Wade, et al., No. 16SL-AC04665 (21st Judicial Circuit, St. Louis County). In the complaint before
the Court, Mr. Howard, who alleges he is the trustee and assignee of the property, seeks an
injunction to stop the unlawful detainer action in state court.
In the pleading, Mr. Howard alleges that he was filing his complaint on behalf of a “private
trust entity” known as Wade-Garden Village Private Trust. Mr. Howard states that he is bringing
this action on behalf of a “disabled private trust” that was the “assignee” of the one Toni Wade’s

home, located at 1228 Garden Village Drive, Florissant, Missouri, 63031, which was mortgaged by
defendant James B. Nutter & Company.
On March 14, 2016, the Court ordered the Clerk to transfer this matter to a regular civil
action in this Court, and ordered Mr. Howard to file a new civil complaint in this matter on a courtform. Mr. Howard was also told that he was expected to pay the full $400 filing fee for filing a civil
action in this Court.
In direct contravention of this Court’s March 14, 2016 Memorandum and Order, Mr.
Howard filed a response, on March 25, 2016, indicating that he “does not accept” this Court’s order.
Mr. Howard has not filed an amended complaint in this action, nor has he paid the required filing
fee. Instead, he has filed a replica of his original complaint as an addendum to his response brief.
He argues that this Court must accept his case because he believes that this Court has “exclusive
jurisdiction of all matters arising out of trusts.” Mr. Howard is simply incorrect.
Discussion
As explained in the Court’s prior Memorandum and Order, this Court can attain jurisdiction
through federal questions, see 28 U.S.C. § 1331, or through diversity jurisdiction, see 28 U.S.C. §
1332. Because it does not appear that the instant action arises under the Constitution, laws, or
treaties of the United States, federal question jurisdiction pursuant to 28 U.S.C. § 1331 is
inapplicable. Additionally, the amount in controversy is unspecified, and plaintiff has insufficiently
alleged diversity of citizenship. See 28 U.S.C. § 1332.
Chevalier Peree Howard asserts that he is a “foreign citizen” and therefore capable of
rendering the diversity of citizenship needed in this action to maintain jurisdiction under 28 U.S.C.
§ 1331. As evidence of his “foreign citizenship” Mr. Howard states that he is a “private citizen of
the United States of America, privately residing and privately domiciling within a non-military

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occupied private estate, outside a ‘Federal District’, not subject to the jurisdiction of the United
States. . .”
The arguments set forth by Mr. Howard are frivolous and similar to the “sovereign citizen”
arguments frequently brought before this Court. See United States v. Hart, 701 F.2d 749, 750 (8th
Cir.1983)(characterizing as frivolous an appeal in tax case challenging government's jurisdiction
over “sovereign citizen”);United States v. Sterling, 738 F.3d 228, 233 n. 1 (11th Cir.2013), cert.
denied, 2014 WL 1621678 (May 27, 2014); United States v. Benabe, 654 F.3d 753, 761-67 (7th Cir.
2011 (describing the conduct of another “sovereign citizen” and collecting cases rejecting the
group’s claims as frivolous). Arguments based on the “sovereign citizen” or “private citizen”
movement cannot establish diversity jurisdiction in this action.
Because plaintiff has failed to comply with this Court’s March 14, 2016 Memorandum and
Order by filing an amended complaint in this action, as well as pay the $400 filing fee, this action
will be dismissed, without prejudice, pursuant to Federal Rule of Civil Procedure 41(b).
Additionally, the Court notes that plaintiff has failed to properly allege the jurisdictional basis for
bringing the action to this Court, despite being given time to do so. See 28 U.S.C. §§ 1331 and
1332. As such, this matter must be dismissed for lack of jurisdiction, pursuant to Federal Rule of
Civil Procedure 12(h)(3).
The Court also reminds plaintiff that the Missouri Supreme Court has outlined the proper
litigation avenues for homeowners who believe they are victims of wrongful foreclosure and the
limited nature of an unlawful detainer action under Missouri statute:
As a result of [a] statutory limitation on the substantive scope of unlawful detainer
actions, homeowners who believe their foreclosures are improper must act to protect
themselves if they do not want to lose possession of their home. They must either:
(1) sue to enjoin the foreclosure sale from occurring, or (2) if the sale has occurred
and the buyer has sued for unlawful detainer, bring a separate action [in state court]
challenging the foreclosure purchaser's title and seek a stay of the unlawful detainer
action in that separate case.
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Wells Fargo Bank, N.A. v. Smith, 392 S.W.3d 446, 461 (Mo.2013). In other words, plaintiff’s
remedy is in Missouri state court. As a hearing on plaintiff’s unlawful detainer action is set for May
4, 2016, in St. Louis County Court, he may want to pursue his state court remedies in a timely
fashion. See James B. Nutter & Company v. Toni Wade, et al., No. 16SL-AC04665 (21st Judicial
Circuit, St. Louis County).
Despite his assertions otherwise, plaintiff does not have a remedy against defendants in this
Court. This action will be dismissed in accordance with the reasons set forth above.
Accordingly,
IT IS HEREBY ORDERED that this action will be dismissed for lack of subject matter
jurisdiction. See Fed.R.Civ.P. 12(h)(3).
IT IS FURTHER ORDERED that alternatively, this action will be dismissed due to
plaintiff’s failure to comply with this Court’s March 14, 2016 Memorandum and Order. See
Fed.R.Civ.P. 41(b).
A separate Order of Dismissal will accompany this Memorandum and Order.
Dated this 4th day of April, 2016.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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