O'Bryant v. Meineke

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to Proceed in Forma Pauperis, Doc. 3 , is GRANTED. IT IS FURTHER ORDERED that Plaintiff must show cause in writing no later than Monday, December 16, 2024, why this action should not be dismissed for lack of jurisdiction. IT IS FINALLY ORDERED that Plaintiff's Motion for Appointment of Counsel, Doc. 2 , is DENIED. Signed by District Judge Matthew T. Schelp on November 25, 2024. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARTINO O’BRYANT,
Plaintiff,
v.
MEINEKE,
Defendant.

)
)
)
)
)
)
)
)
)

No. 4:24-cv-01389-MTS

MEMORANDUM AND ORDER
Before the Court is another matter filed by self-represented Plaintiff Martino O’Bryant.
He seeks leave to proceed in forma pauperis. Doc. [3]. Based on the financial information he
provided, the Court will grant the Motion. See 28 U.S.C. § 1915(a)(1). But, like his action
against Sport’s Tutor, Inc., Plaintiff has not established this Court’s subject matter jurisdiction
over this action. A federal district court must “presume[ ] that a cause lies outside [its] limited
jurisdiction,” and “the burden of establishing the contrary rests upon the party asserting
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Plaintiff’s
current recitation of jurisdiction invoking the Seventh Amendment, for example, is frivolous.
See Access Cap. Invs. Fund Two, L.P. v. Pujol, 3:15-cv-00312-MMC, 2015 WL 1089329, at
*3 (N.D. Cal. Mar. 3, 2015) (“The Seventh Amendment is not jurisdictional—it does not give
the federal courts the power to hear cases that do not otherwise fall within their jurisdiction.”).
The Court will order Plaintiff to show cause why this case should not be dismissed for lack of
subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
The Court cautions Plaintiff that Federal Rule of Civil Procedure 11(b) allows the Court
to sanction a litigant who files claims that are not warranted by existing law or who makes
-1-

factual contentions that have no evidentiary support. See Carmona v. Branstuder, 68 F.3d 470
(5th Cir. 1995) (per curiam) (“Rule 11 directs the court to impose sanctions against a litigant
who signs frivolous or abusive pleadings, and may be imposed on pro se litigants.”);
Kurkowski v. Volcker, 819 F.2d 201, 204 (8th Cir. 1987) (noting that while “pro se complaints
are read liberally,” they “still may be frivolous” under Rule 11). In addition, because Plaintiff
has not yet shown that he has stated a non-frivolous claim, the Court will deny Plaintiff’s
Motion to Appoint Counsel. See Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to Proceed in Forma
Pauperis, Doc. [3], is GRANTED.
IT IS FURTHER ORDERED that Plaintiff must show cause in writing no later than
Monday, December 16, 2024, why this action should not be dismissed for lack of jurisdiction.
IT IS FINALLY ORDERED that Plaintiff’s Motion for Appointment of Counsel,
Doc. [2], is DENIED.
Dated this 25th day of November 2024.

____________________________________
MATTHEW T. SCHELP
UNITED STATES DISTRICT JUDGE

-2-