Fischer v. Firman et al

Filing 5

ORDER amended complaint due within 30 days 1 Complaint., ( Amended Pleadings due by 6/15/2012.) So Ordered by Magistrate Judge Landya B. McCafferty.(mm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Madalyn Barton Fischer
v.

Civil No. 12-cv-146-PB

Aaron Firman, et al.1

O R D E R
Before the court for a preliminary review is the complaint
(doc. no. 1) filed in forma pauperis by pro se plaintiff,
Madalyn Fischer.

Because Fischer is proceeding pro se and in

forma pauperis, the complaint is before the court for
preliminary review to determine if the matter is within this
court’s jurisdiction and, if so, whether the complaint states
any claim that may be served.

See 28 U.S.C. § 1915(e); United

States District Court District of New Hampshire Local Rule
(“LR”) 4.3(d)(1)(B).2

1

Defendants are the plaintiff’s son-in-law Aaron Firman, her
daughter Kelly Barton Firman, and the First National Bank of
Canada.
2

Also before the court is a motion to appoint counsel (doc.
no. 3) and a motion to transfer the case (doc. no. 4) to the
United States District Court for the District of Maine. The
court will take up those motions in a separate order, as
appropriate, after Fischer has had an opportunity to respond to
this order.

Background
Construed liberally, the handwritten complaint in this case
asserts that Fischer is a resident of Maine living on a fixed
income in temporary housing, and that she is on a waiting list
for affordable housing.

Defendants Kelly Barton Firman

(“Kelly”) and Aaron Firman (“Aaron”), Fischer’s daughter and
son-in-law, live in New Hampshire.
Fischer has alleged that Kelly, with the help of Attorney
Jeffrey Schapira of Manchester, New Hampshire, pursued an action
to have a custodian or guardian appointed for Fischer, in order
that Kelly could gain access to Fischer’s money.

Fischer has

alleged that her daughter uses the money without providing any
accounting to show how she spent it.
Fischer claims to be the beneficiary of an inheritance,
allegedly consisting of stocks, bonds, and/or proceeds from a
Canadian life insurance policy.

No one has been able to locate

that inheritance for Fischer, and unspecified persons have told
her that the inheritance does not exist.

Fischer has alleged

that her daughter has taken the inheritance.
Fischer also asserts that Aaron has forged Fischer’s name
and used her social security number in connection with a car
loan, credit cards, and a mortgage from the First National Bank

2

of Canada, named as a defendant in this action.

Fischer has

provided a Canadian address for that bank,3 and she has asked for
the appointment of a lawyer licensed to practice in the United
States and Canada.

Discussion
Federal courts are courts of limited jurisdiction.
Picciotto v. Cont’l Cas. Co., 512 F.3d 9, 17 (1st Cir. 2008).
The presumption is that a federal court lacks jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994).

The burden is on the plaintiff who claims jurisdiction

to affirmatively allege jurisdiction and prove it.

See id.; K2

Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1027 (9th
Cir. 2011), cert. denied, 132 S. Ct. 1098 (2012).

If the court

lacks subject matter jurisdiction over a matter, the court must
dismiss the action.

Fed. R. Civ. P. 12(h)(3).

Simply put, some lawsuits cannot be filed in federal court
because no federal law authorizes the court to hear the case.
It is up to Fischer to show that her claims fit within the laws
defining the scope of the court’s jurisdiction.

3

The complaint’s reference to the bank’s lost litigation
department is construed to be the “loss mitigation” department.
3

One way in which this court’s jurisdiction can be
established is by assertion of a claim for relief that arises
under federal law.

See 28 U.S.C. § 1331.

No such claim appears

on the face of the complaint here.
Another manner in which federal court jurisdiction can be
invoked is by plaintiff’s assertion of facts demonstrating that
an action lies within the court’s “diversity jurisdiction.”
28 U.S.C. § 1332.

See

Such a case involves claims seeking more than

$75,000, filed by a person who lives in one state, against
citizens of a different state, or against a citizen of another
country.

Id.

Fischer, who lives in Maine, has asserted state

law tort claims of theft and fraud against her daughter and sonin-law, who live in New Hampshire.
Canada.

The defendant bank is in

Fischer has therefore satisfied the residency

requirement of diversity jurisdiction, under 28 U.S.C. § 1332.4

4

On February 2, 2012, this court issued a report and
recommendation in an earlier case filed by Fischer, Fischer v.
Schapira, No. 11-CV-333-JD, recommending that the case be
dismissed for lack of subject matter jurisdiction. One basis
for the report and recommendation was a mistaken finding about
where Fischer lived. Fischer did not object to the report and
recommendation. The district judge accepted it, and, on
February 23, 2012, a judgment of dismissal without prejudice was
entered, closing that case. This court’s review of the record
in the instant case has revealed the court’s earlier mistake
regarding Fischer’s residency. As the dismissal of Case No. 11CV-333-JD was without prejudice, that judgment does not bar
Fischer from reasserting the same claims in a different case.
4

To establish diversity jurisdiction, however, Fischer must
also assert that the statute’s $75,000 “amount in controversy”
requirement in § 1332(a) has been met.

Abdel-Aleem v. OPK

Biotech LLC, 665 F.3d 38, 41 (1st Cir. 2012) (“[t]he federal
plaintiff carries the burden to establish that the minimum
amount in controversy has been met”).

The amount claimed by the

plaintiff controls the question, unless challenged by the court
or the defendant.

Id.

Fischer has not specifically claimed that more than $75,000
is at stake in this case.

Fischer has failed to allege that the

possible losses, personal injuries, or other damages she may
have suffered, due to defendants’ alleged misdeeds, exceed
$75,000.

Because the court cannot determine, based on the

allegations in the complaint, whether Fischer can assert facts
sufficient to show that the court has jurisdiction over the
case, the court will provide Fischer with an opportunity to file
documents or otherwise allege facts to show that at least
$75,000 is at stake, or that some other federal law provides the
court with jurisdiction.

See LR 4.3(d) (magistrate judge may

direct plaintiff to file amended complaint).

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Conclusion
For the foregoing reasons, the court grants Fischer leave
to file, within 30 days of the date of this order, an amended
complaint including factual allegations showing either that this
action arises under federal law, or that there is more than
$75,000 in damages at stake in this action.

If Fischer fails to

comply with this order, this court may recommend that the action
be dismissed without prejudice for lack of subject matter
jurisdiction.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
May 14, 2012
cc:

Madalyn Fischer, pro se

LBM:nmd

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