JEAN-PAUL et al v. WELLS FARGO NATIONAL ASSOCIATION
Filing
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MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, signed on 09/30/2015. IT IS THEREFORE ORDERED that Plaintiffs Application to Proceed In Forma Pauperis (Docket Entry 1 ) is GRANTED for the limited purpose of considering this recommendation of dismissal. IT IS RECOMMENDED that this action be dismissed for lack of subject matter jurisdiction. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PATRICK JEAN-PAUL,
ET AL.,
Plaintiffs,
v.
WELLS FARGO NATIONAL
ASSOCIATION, ET AL.,
Defendants.
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1:15CV00682
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiffs’ Application to
Proceed In Forma Pauperis (Docket Entry 1) in conjunction with
their pro se Complaint (Docket Entry 2).1
Plaintiffs’
instant
Application
for
the
The Court will grant
limited
purpose
of
recommending dismissal for lack of subject matter jurisdiction.
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts solely because
his poverty makes it impossible for him to pay or secure the
costs.”
1
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th
Plaintiffs’ In Forma Pauperis Application (Docket Entry 1) states that
Plaintiff Patrick Jean Paul currently makes $152,000 per year through his
employment with Wells Fargo Bank NA and that his monthly financial obligations
total $1,159.00 (id. at 1 3). Based on Plaintiffs’ representations, it appears
they would not qualify to proceed in forma pauperis; however, given the
recommendation of dismissal for lack of subject matter jurisdiction, the Court
need not evaluate Plaintiffs’ financial eligibility for pauper status.
Cir.
1995)
(en
banc)
(internal
“Dispensing
with
filing
fees,
quotation
however,
[is]
marks
not
omitted).
without
its
problems. . . . In particular, litigants suing in forma pauperis
d[o] not need to balance the prospects of successfully obtaining
relief against the administrative costs of bringing suit.” Nagy v.
FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004).
To
address
this
concern,
the
in
forma
pauperis
statute
provides that “the court shall dismiss the case at any time if the
court determines . . . (B) the action . . . is frivolous.”
U.S.C. § 1915(e)(2).
28
“[A] complaint, containing as it does both
factual allegations and legal conclusions, is frivolous where it
lacks an arguable basis either in law or in fact.”
Neitzke v.
Williams, 490 U.S. 319, 325 (1989). In assessing such matters, the
court may “apply common sense.”
Nasim, 64 F.3d at 954; see also
Nagy, 376 F.3d at 256–57 (“The word ‘frivolous’ is inherently
elastic and not susceptible to categorical definition. . . .
The
term’s capaciousness directs lower courts to conduct a flexible
analysis, in light of the totality of the circumstances, of all
factors bearing upon the frivolity of a claim.” (some internal
quotation marks omitted)).
The Court may consider its subject matter jurisdiction as part
of the frivolity review.
Overstreet v. Colvin, 4:13-CV-261, 2014
WL 353684, at *3 (E.D.N.C. Jan. 30, 2014) (unpublished) (citing
Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that
2
“[d]etermining the question of subject matter jurisdiction at the
outset of the litigation is often the most efficient procedure”)).
“‘[F]ederal courts are courts of limited jurisdiction,’ constrained
to exercise only the authority conferred by Article III of the
Constitution and affirmatively granted by federal statute.”
In re
Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998) (quoting
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978)).
The party invoking jurisdiction has the burden of establishing
subject matter jurisdiction.
Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982) (“The burden of proving subject matter jurisdiction
. . . is on the plaintiff, the party asserting jurisdiction.”).
“The
complaint
jurisdiction,”
must
affirmatively
allege
the
grounds
for
Overstreet, 2014 WL 353684, at *3, and the Court
must dismiss the action if it determines that subject matter
jurisdiction does not exist, Fed. R. Civ. P. 12(h)(3).
ANALYSIS
Plaintiffs contend that Defendants are wrongfully, unlawfully,
and
illegally
attempting
to
sell
Plaintiffs’
home
through
foreclosure (Docket Entry 2 at 5) by purportedly “conceal[ing] what
they know to be true, misrepresent[ing] the facts, [and] ma[king]
false statements [before the Clerk of Superior Court in Cabarrus
County,
North
Carolina
(Civil
No.
15-SP-284)]”
(id.
at
8).
Plaintiffs aver that neither Defendants nor their agents have
verified or validated the amount of money Plaintiff purportedly
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owes Defendant Wells Fargo National Association, further making the
foreclosure wrongful and illegal.
(Id. at 5, 7-11.)
Plaintiffs maintain that “[t]his [C]ourt has jurisdiction
under 28 U.S. Code § 1332 - Diversity of citizenship; amount in
controversy; costs.”
(Docket Entry 2 at 4, 13.)
In support of
this contention, Plaintiffs allege that they are “residents of the
State of North Carolina” and that Defendant Wells Fargo National
Association “is a corporation organized and existing under the laws
of the State of North Carolina,” Defendant Aaron B. Anderson “is an
individual believed to reside in the state of North Carolina,” and
Defendant Trustee Services of Carolina, LLC “is a corporation
organized and existing under the laws of the State of North
Carolina.”
(Id. at 2).
Based on these allegations, Plaintiffs cannot carry their
burden of establishing diversity subject matter jurisdiction under
28 U.S.C. § 1332(a), because Plaintiffs are citizens of the same
state as at least one Defendant.
See Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) (“[T]he presence
in the action of a single plaintiff from the same State as a single
defendant
deprives
the
district
court
of
original
diversity
jurisdiction over the entire action.”); Sanderlin v. Hutchens,
Senter & Britton, P.A., 783 F. Supp. 2d 798, 801 (W.D.N.C. 2011)
(“Plaintiffs have not satisfied the complete diversity requirement.
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Specifically Plaintiffs and Defendant Hutchens, Senter & Britton,
P.A. are both citizens of North Carolina.”).
Moreover, although Plaintiffs’ Complaint references several
federal statutes (see, e.g., Docket Entry 2 at 7 (Civil Rights
Attorney’s Fee Award Act of 1796, 90 Stat. 2641, as amended 42
U.S.C. 1988), 12-13 (“TITLE 15 Chapter 41 Sub V section 1692 - DEBT
COLLECTION PRACTICES,” a/k/a 15 U.S.C. § 1692 et seq.), 21 (12
U.S.C. § 1813)), as well as the United States Constitution (see,
e.g., id. at 2 (asserting rights under the Seventh Amendment to the
United States Constitution and demanding jury trial), 3 (providing
notice “under authority of the supremacy and equal protection
clauses of the United States Constitution”)), Plaintiffs do not
attempt to assert any federal causes of action. Rather, Plaintiffs
seek damages for Defendants’ purported “willful fraud, willful
misrepresentation, willful breach of trust, . . . willful dishonest
service to the public, willful making false statements, . . .
aggravation, inconvenience, defamation, and intentional affliction
of
emotional
duress”
(Docket
Entry
2
at
28),
constitute recognizable federal causes of action.
law,
the
Complaint
thus
fails
to
establish
which
do
not
As a matter of
subject
matter
jurisdiction and the obviousness of this defect renders this action
legally frivolous in this Court.
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IT
IS
THEREFORE
ORDERED
that
Plaintiffs’
Application
to
Proceed In Forma Pauperis (Docket Entry 1) is GRANTED for the
limited purpose of considering this recommendation of dismissal.
IT IS RECOMMENDED that this action be dismissed for lack of
subject matter jurisdiction.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 30, 2015
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