MCHAM v. CAPTIAL BANK et al

Filing 5

MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, signed 12/19/14 RE: 1 APPLICATION to Proceed IFP, 3 Complaint filed by KENNETH O. MCHAM and 4 Additional Attachments to Main Document. The Cour t will grant Plaintiff's Application to Proceed IFP, for the limited purpose of recommending dismissal of Plaintiffs' federal-law claims pursuant to 28 U.S.C. § 1915(e)(2)(b) for frivolousness. IT IS THEREFORE ORDERED that Plaint iffs' Motion to Proceed In Forma Pauperis is GRANTED. IT IS RECOMMENDED that Plaintiffs' federal-law claims be dismissed for lack of subject matter jurisdiction over Plaintiffs' state-law claims.( Objections to R&R due by 1/5/2015) (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KENNETH O. MCHAM,
PATRICIA D. SMITH,
Plaintiffs,
v.
CAPITAL BANK, et al.,
Defendants.

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1:14CV999

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application to
Proceed In Forma Pauperis (Docket Entry 1) in conjunction with his
pro se Complaint (Docket Entries 3, 4).

The Court will grant

Plaintiff’s Application (Docket Entry 1) for the limited purpose of
recommending dismissal of Plaintiffs’ federal-law claims pursuant
to 28 U.S.C. § 1915(e)(2)(B) for frivolousness.

Additionally, the

undersigned will recommend that the Court decline supplemental
jurisdiction over Plaintiffs’ remaining state-law claims.
Similar to Plaintiffs’ companion case, McHam v. Wells Fargo
Bank, 1:14-cv-997 (M.D.N.C.), Plaintiffs allege that Defendants
withdrew money from Plaintiff Patricia D. Smith’s bank account
without her permission.

(Docket Entry 3 at 15.)

As a result,

Plaintiffs filed this action alleging violations of 18 U.S.C. §§
1344 and 1014, in addition to various state-law claims.

(Docket

Entries 3, 4.)

Both of the purported federal violations only

concern Plaintiff Smith’s bank account.
Also similar to Plaintiff’s companion case, see McHam v. Wells
Fargo

Bank,

1:14-cv-997,

(Docket

Entry

3

at

1)

(M.D.N.C.),

Plaintiff Kenneth O. McHam purports to represent Plaintiff Smith
pro se under an executed power of attorney.
Complaint

Form,

Plaintiff

McHam

lists

On the Pro Se

Plaintiff

Smith

as

a

plaintiff under the “Parties” section, (see Docket Entry 3 at 1),
and it appears Plaintiff McHam signed the Complaint for Plaintiff
Smith with the designation “(POA)” (id. at 3).

Thus, Plaintiff

McHam attempts to represent both himself and Plaintiff Smith pro se
in this case.
However, as discussed in Plaintiffs’ companion case, the law
does not permit Plaintiff McHam to represent Plaintiff Smith
pursuant to an executed power of attorney.

See McHam v. Wells

Fargo Bank, 1:14-cv-997 (Docket Entry 5) (M.D.N.C.).

Therefore,

for the same reasons discussed in McHam v. Wells Fargo Bank, 1:14cv-997, (Docket Entry 5) (M.D.N.C.), the Court should dismiss all
federal-law claims asserted on behalf of Plaintiff Smith for lack
of subject matter jurisdiction.
claims come

from

state law.

All of Plaintiffs’ remaining
Therefore, like

in

Plaintiffs’

companion case and for the same reasons, the Court should decline
to exercise supplemental jurisdiction.

2

See id.

IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Proceed In
Forma Pauperis is granted.
IT IS RECOMMENDED that Plaintiffs’ federal-law claims be
dismissed for lack of subject matter jurisdiction and the Court
decline

supplemental

jurisdiction

over

Plaintiffs’

state-law

claims.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 19, 2014

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