Smith v. MasterCard International
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (Docket No. 2) is GRANTED. IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint within fourteen (14) days of this Memorandum and Order. Plaintiff's failure to timely comply with this Memorandum and Order shall result in the dismissal of the complaint. Signed by District Judge Catherine D. Perry on December 15, 2016. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:16CV1866 CDP
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Charmane Smith for leave to
proceed in forma pauperis. (Docket No. 2). Upon review of the financial affidavit plaintiff
submitted in support of the motion, the Court has determined that plaintiff is unable to pay the
filing fee. 28 U.S.C. § 1915. The motion will therefore be granted. In addition, plaintiff will be
allowed the opportunity to submit an amended complaint.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief, a complaint must plead more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A plaintiff must
demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to draw upon its judicial experience and
common sense. Id. at 679.
Plaintiff commenced this action in this Court on November 28, 2016, naming MasterCard
International as defendant. It is notable that plaintiff has been a very frequent pro se and in
forma pauperis litigator in other United States District Courts, with one such Court noting her
history of having filed “numerous, patently meritless actions.” Smith v. Dell, 2007 WL 3232037
at *1 (W.D. Tenn. October 31, 2007).
Plaintiff alleges federal subject matter jurisdiction on the basis of diversity of citizenship
pursuant to 28 U.S.C. § 1332. For her claims against defendant, plaintiff alleges as follows:
My bank account(s) were hijacked and money was stolen by black hat hackers
(online organized criminal gang). Security flaws of my credit and debit cards and
linked accounts enabled tortious interference by the hackers – which caused me to
be locked out of my accounts, theft from the accounts, and incorrect billing
(Docket No. 1 at 3).
Plaintiff seeks “actual, compensatory, continuing, consequential, lost expected benefit,
per diem, attorneys fees, court & litigation fees, lawsuit funding fees, monetary & trebled
damages – in the sum of $1,000,000.00 or more.” (Id. at 4). As the reason for seeking the
amount claimed, plaintiff wrote:
$1,000,00.00 + monetary damages
Damages have accrued for at least 5 years
Damage to my personal & professional credit rating & viability has hindered my
I have suffered loss of money & creditworthiness.
The only claim plaintiff presents with any specificity, “tortious interference,” derives
from state law. Because the complaint alleges no basis for federal question jurisdiction, if
jurisdiction exists at all it must be premised on diversity of citizenship. As noted above, plaintiff
alleges diversity jurisdiction and alleges an amount in controversy in excess of $1,000,000.00, an
amount that far and away exceeds the $75,000.00 required by 28 U.S.C. § 1332(a). However,
the facts alleged in the complaint do not appear to provide an adequate foundation for plaintiff’s
belief that her damages are properly measured at such an amount, or are even sufficient to meet
the amount in controversy requirement at all. As noted above, plaintiff’s allegations are based
upon hackers stealing money from her “bank account(s)” (Id. at 3). However, she fails to allege
facts as basic as how many of her accounts were hacked or how much money they contained
before the hacking occurred. In addition, plaintiff fails to provide, and the Court cannot discern,
a legal foundation for an award of the trebled damages she seeks. These deficiencies lead the
Court to question whether the amount alleged is legitimate and, consequently, whether this suit
really and substantially involves a dispute or controversy properly within its jurisdiction. “When
a federal complaint alleges a sufficient amount in controversy to establish diversity jurisdiction,
but the opposing party or the court questions whether the amount alleged is legitimate, the party
invoking federal jurisdiction must prove the requisite amount by a preponderance of the
evidence.” State of Mo. ex rel. Pemiscot County, Mo. v. Western Sur. Co., 51 F.3d 170, 173 (8th
Cir. 1995) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
Plaintiff will be given the opportunity to amend the complaint to cure these deficiencies.
Statute of Limitations
For the sole purpose of conducting the required review of the complaint, the Court
presumes that subject matter jurisdiction exists and notes that federal courts sitting in diversity
“apply state substantive law and federal procedural law.” Hanna v. Plumer, 380 U.S. 460, 465
(1965). Under Missouri law, an action for tortious interference with a contract or business
expectancy must be commenced within five years. D’Arcy & Associates, Inc. v. K.P.M.G. Peat
Marwick, L.L.P., 129 S.W.3d 25, 29 (Mo. Ct. App. 2004). In the complaint, plaintiff does not
state when the events giving rise to the allegations took place, but she does state that “damages
have accrued for at least 5 years.” (Docket No. 1 at 4) (emphasis added). It is therefore unclear
whether plaintiff has brought this action within the applicable limitations period. Plaintiff will
be given the opportunity to amend her complaint to cure this deficiency.
As noted above, plaintiff alleges that hackers tortiously interfered with her “bank
account(s)” and that defendant can be liable for this tortious interference because of “security
flaws.” (Id. at 3). Under Missouri law, the elements of tortious interference with a contract or
business expectancy are (1) a contract or valid business expectancy, (2) defendant’s knowledge
of the contract or relationship, (3) an intentional interference by the defendant inducing or
causing a breach of the contract or relationship, (4) absence of justification and (5) damages.
Serv. Vending Co. v. Wal–Mart Stores, 93 S.W.3d 764, 769 (Mo. Ct. App. 2002). Plaintiff does
not allege that defendant interfered with a contract she had with a third party, so it appears that
she alleges that defendant can be held liable for tortiously interfering with its own contract.
Defendant cannot be held so liable. Wigley v. Capital Bank of Southwest Missouri, 887 S.W.2d
715, 722 (Mo. Ct. App. 1994) (internal citations omitted)(a party to a contract cannot be liable
for tortiously interfering with his own contract); see also Kelly v. State Farm Mut. Auto. Ins. Co.,
218 S.W.3d 517, 525 (Mo. Ct. App. 2007). As pled, plaintiff’s allegations do not state a claim
for tortious interference against defendant, and her complaint is therefore subject to dismissal.
However, in consideration of her pro se status, she will be given the opportunity to file an
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint within
fourteen (14) days of this Memorandum and Order.
Plaintiff’s failure to timely comply with this Memorandum and Order shall result in
the dismissal of the complaint.
Dated this 15th day of December, 2016.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
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