PCII REO LLC v. Cummings et al

Filing 5

OPINION & ORDER Remanding Case to Superior Court of New Jersey, Essex County. The Clerk is directed to close the file. Signed by Judge John Michael Vazquez on 9/28/17. (cm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PCIIREOLLC,
Plaint UL

Civil Action No. 17-6628 (JMV)(JBC)

v.
OPINON & ORDER

BETTY CUMMNGS et al,
Defendants.

John Michael Vazguez, U.S.D.J.

THIS MATTER comes before the Court by way of Defendant/Counter-Claimant Roland
Games’ notice of removal from the Superior Court of New Jersey, Special Civil Part, in Essex
County, D.E. 1, and his subsequent application to proceed informapauperis. D.E. 3.
Under Section 1915, this Court may excuse a litigant from prepayment of fees when the
litigant “establish[es] that he is unable to pay the costs of his suit.” Walker v. People Express
Airlines, Inc., $86 F.2d 598, 601 (3d Cir. 1989). if Plaintiff sufficiently establishes his inability to
pay, and the Court grants his application to proceed informapauperis without prepayment of fees
and costs. However, when allowing a plaintiff to proceed informa pauperis, the Court must review
the complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief against a defendant who
is immune. 2$ U.S.C.

§

1915(e)(2).

As a threshold matter, Plaintiff has not set forth a basis for the Court’s subject matter
jurisdiction. “Federal courts are courts of limited jurisdiction, and when there is a question as to
our authority to hear a dispute, ‘it is incumbent upon the courts to resolve such doubts, one way or

the other, before proceeding to a disposition on the merits.” Zambelli Fireworks Mfg. Co. v. Wood,
592 F.3d 412, 418 (3d Cir. 2010) (quoting Carlsberg Res. Corp. v. Cambria Say. & Loan Ass’n,

554 F.2d 1254, 1256 (3d Cir. 1977)). “Federal courts have subject matter jurisdiction over a case
if it satisfies federal question jurisdiction under 28 U.S.C.
28 U.S.C.

§ 1331, or diversity jurisdiction under

§ 1332.” Hines v. Irvington Counseling Ctr., 933 F. Supp. 382, 387 (D.N.J. 1996).

Pursuant to 28 U.S.C.

§ 1331, “[t]he district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the United States.” “[A] claim arises
under federal law if federal law creates the cause of action.” Empire Healthchoice Assur., Inc. v.
Mc Veigh, 547 U.S. 677, 706 (2006) (quoting Merrell Dow Pharm. Inc. v. Thompson, 478 U.S.

804, 808 (1986)). To establish diversity jurisdiction pursuant to 28 U.S.C.

§ 1332(a), “the party

asserting jurisdiction must show that there is complete diversity of citizenship among the parties”
as well as an amount in controversy exceeding the statutory threshold. Schneller ex rel Schneller
v. Crozer Chester Med. Ctr., 387 Fed. App’x 289, 292 (3d Cir. 2010).
In this matter, Games invokes federal question jurisdiction. D.E. 1 at 2; D.E. 1-3. As to
his alleged causes of action, Games refers to 42 U.S.C.

§ 1983 and indicates a lack of “Due

Process, theft by deception, intrinsic and extrinsic fraud.” D.E. 1-3. Thus, it appears that Games
is invoking federal question jurisdiction pursuant to Section 1983.
As noted, the matter was removed from the Superior Court of New Jersey, Special Civil
Part, in Essex County. D.E. 1-2 at 1. The underlying matter appears to center around Plaintiff
holding a tax sale certificate for a property located in East Orange, New Jersey. Id. at 9, 11.
According to Plaintiff, no one offered to pay (or paid) the outstanding balance due on the tax
certificate for more than two years after Plaintiff acquired the tax certificate. Id. at 9. Defendant
Games appears to be claiming that in connection with the Essex County court proceedings, a false

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verification was filed by Plaintiff so that any judgment obtained would be fraudulent and “void on
its face.” Id. at 4.
While invoking jurisdiction pursuant to Section 1983, Defendant Games’ allegations are
clearly deficient. For example, there is no “state actor” as required by Section 1983; instead the
case seems to involve a dispute among a private entity (Plaintiff) and private citizens (including
Defendant Games).1 Moreover, neither thefi by deception nor common law fraud raise federal
questions. Because there is no federal question, the Court lacks subject matter jurisdiction.
Accordingly, and for good cause shown,
IT IS on this 2$t1 day of September, 2017;
ORDERED this matter is REMANDED to Superior Court of New Jersey, Essex County,
because this Court lacks subject matter jurisdiction; and it further
ORDERED that the Clerk’s Office shall mail a copy of this Opinion and Order to
Defendant Games by certified mail return receipt; and it is further
ORDERED that the Clerk’s Office shall close the above-captioned matter.

John Michael Vazquez, LS.L1J.

Although not raised by Defendant Games, there also appears to be no basis for diversity
citizenship. Citizenship of an LLC, like Plaintiff, is determined by the respective citizenship of
its members. Zambelli fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010).
Defendant Games makes no showing that every member of the LLC is not domiciled in New
Jersey. Yet, even if no member of the LLC was domiciled in New Jersey, the amount in
controversy does not satisfy the statutory minimum of $75,000. 28 U.S.C. §1332(b). The
underlying tax lien (inclusive of interest, fees, and expenses), is under $62,000. D.E. 1-2 at 9.
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