Brown v. Spikes et al

Filing 3

ORDER that the Plaintiff's #2 Application to Proceed in District Court without Prepaying Fees or Costs is GRANTED, and the Plaintiff shall be allowed to proceed without prepayment of the filing fee or giving security therefor. IT IS FURTHER ORDERED that the Plaintiff's #1 Complaint is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Signed by Chief Judge Martin Reidinger on 10/22/2024. (Pro se litigant served by US Mail.)(kby)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:24-cv-00249-MR-WCM
THURMAN BROWN, Heir and Lead
on behalf of himself and others
similarly situated,

)
)
)
)
Plaintiffs,
)
)
vs.
)
)
SARAH JANE SPIKES; MURRELL K. )
SPIKES; RICKEY McCLUNEY; MARK )
D. LACKEY; THE REGISTRAR OF
)
DEEDS FOR CLEVELAND COUNTY; )
and others to be determined,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Application to
Proceed in District Court without Prepaying Fees or Costs [Doc. 2].
I.

BACKGROUND
The pro se Plaintiff Thurman Brown brings this putative class action on

behalf of himself as an heir to the Estate of Henrietta Flack Withrow, along
with other similarly situated heirs, tenants, and third-party purchasers,
asserting claims of fraud, breach of fiduciary duty, professional negligence,
and negligence. [Doc. 1 at 1, 5-6]. The Plaintiff names as Defendants Sarah
Jane Spikes, the administrator of Ms. Withrow’s estate; Murrell K. Spikes and

Rickey McCluney, who allegedly participated in fraudulent property transfers
of estate property arranged by Sarah Jane Spikes; Mark D. Lackey and
Thomas W. Martin,1 attorneys who allegedly prepared and facilitated the
fraudulent property transfers; and the “Registrar [sic] of Deeds for Cleveland
County.” All of the named Defendants are alleged to be citizens of North
Carolina. [See Doc. 1 at 3].
In his Complaint, the Plaintiff seeks “compensation, restitution, and
injunctive relief for the harm caused by” the Defendants’ actions in
connection with the estate of Ms. Withrow. [Id. at 1]. The Plaintiff alleges
that these fraudulent activities began “as early as 2005” and involved “the
illegal transfer of estate property through deed fraud, title washing, and
misrepresentation.” [Id.]. As a result of the Defendants’ actions, the Plaintiff
contends that he “has suffered financial loss, emotional distress, and a delay
in receiving his rightful inheritance.” [Id. at 2].
The Plaintiff purports to represent “others similarly situated,” including
other heirs of Ms. Withrow’s estate, tenants of the estate properties, thirdparty purchasers, individuals harmed by “deed fraud and title washing,” and

Mr. Martin is not identified in the Complaint’s caption but is listed among the named
Defendants in the body of the Complaint. [See Doc. 1 at 3].
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co-signatories and co-owners of the properties involved in the alleged
fraudulent transfers. [Id.].
As for jurisdiction, the Plaintiff alleges that the “Court has jurisdiction
over this matter under 28 U.S.C. § 1331 because the claims arise under
federal law, and 28 U.S.C. § 1332(d) as the amount in controversy exceeds
$5,000,000, exclusive of interests and costs, and this is a class action in
which at least one plaintiff is diverse in citizenship from the defendants.” [Id.
at 2].
II.

STANDARD OF REVIEW
Federal district courts are courts of limited jurisdiction. United States

ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). “Thus, when a
district court lacks subject matter jurisdiction over an action, the action must
be dismissed.” Id. The lack of subject matter jurisdiction is an issue that
may be raised at any time. See Ellenburg v. Spartan Motors Chassis, Inc.,
519 F.3d 192, 196 (4th Cir. 2008). “If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R.
Civ. P. 12(h)(3).

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III.

DISCUSSION
A.

Application to Proceed with Prepaying Fees or Costs

The Plaintiff seeks to proceed with this civil action without having to
prepay the costs associated with prosecuting the matter. [Doc. 2].

In his

Application, the Plaintiff asserts that he has no income and no assets, but
has monthly expenses of approximately $500.00. [Id. at 1-2, 4-5]. He states
that he “had to rob and steal to get here” and that he is currently working for
food at an outreach ministry. [Id. at 5]. Upon review of the application, it
appears that the Plaintiff lacks the resources with which to pay the required
filing fee. Accordingly, the Court finds that the application should be granted.
B.

Section 1915 Review of Complaint

In his Complaint, the Plaintiff asserts that the Court has jurisdiction
under 28 U.S.C. § 1331 “because the claims arise under federal law.” [Doc.
1 at 2].

However, the Plaintiff does not identify any federal law in his

Complaint which would give rise to his claims. The Plaintiff asserts claims of
fraud, breach of fiduciary duty, professional negligence, and negligence, all
of which arise under North Carolina law. As such, the Plaintiff has failed
assert a plausible basis for the exercise of subject matter jurisdiction under
§ 1331.
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The Plaintiff also invokes the provisions of the Class Action Fairness
Act of 2005 (“CAFA”) as a basis for subject matter jurisdiction. In order for
jurisdiction to be invoked under CAFA, the action must satisfy three
requirements: “(1) the putative class has more than 100 members
(numerosity); (2) the amount in controversy exceeds five million dollars,
exclusive of interest and costs (amount in controversy); and (3) the parties
are minimally diverse in citizenship (minimal diversity).” Dominion Energy,
Inc. v. City of Warren Police and Fire Retirement Sys., 928 F.3d 325, 330 (4th
Cir. 2019) (citing 28 U.S.C. §§ 1332(d)(2), (5)(B)).
Here, the Plaintiff makes no plausible allegations to satisfy these three
requirements. He makes no attempt to quantify the potential class. He
makes only conclusory statements that the amount in controversy excess $5
million. Moreover, the Plaintiff makes no allegation regarding the citizenship
of any members of the purported class. The only allegations in the Complaint
pertaining to citizenship indicate that the Plaintiff and the named Defendants
are all citizens of North Carolina. Because the Complaint fails to establish
that jurisdiction under CAFA exists, the Court concludes that this action must
be dismissed for lack of subject matter jurisdiction. 2

Even if subject matter jurisdiction existed in this case, the Plaintiff’s Complaint would be
subject to dismissal as frivolous. On their face, many of the Plaintiff’s claims appear to
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ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Application to
Proceed in District Court without Prepaying Fees or Costs [Doc. 2] is
GRANTED, and the Plaintiff shall be allowed to proceed without prepayment
of the filing fee or giving security therefor.
IT IS FURTHER ORDERED that the Plaintiff’s Complaint [Doc. 1] is
DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
IT IS SO ORDERED.
Signed: October 22, 2024

be time-barred, as they are based on allegations of fraudulent transfers that occurred
nearly twenty years ago. Moreover, the Plaintiff makes only vague and conclusory
allegations in support of his claims, none of which would withstand a § 1915 review, much
less a Rule 12(b)(6) motion.
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