Smith v. Haband
MEMORANDUM (Order to follow as separate docket entry)re R&R.Signed by Honorable James M. Munley on 10/30/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(Magistrate Judge Carlson)
Before the court for disposition are Plaintiff Charmane Smith’s (hereinafter
“plaintiff”) objections (Doc. 3) to Magistrate Judge Martin C. Carlson’s report and
recommendation (Doc. 2) (hereinafter “R&R”) in the above-captioned case. The
docket indicates no service of plaintiff’s pro se complaint (Doc. 1) upon
Defendant Haband (hereinafter “defendant”), a Pennsylvania business. The
matter is ripe for disposition.
Plaintiff filed her complaint on September 15, 2017 captioned as an
application for injunction under FED R. CIV. P. 65(a). (Doc. 1 at 1.) In it, she
expresses dissatisfaction with a mail order placed with defendant. (Doc. 1 at 2 ¶
1). Plaintiff apparently ordered items of clothing, and then returned them to
defendant, (Doc. 1 at 2 ¶ 1), requesting instead a pair of boots in exchange.
(Doc. 1 at 1 ¶ 3). Alleging the boots were never received, (Doc. 1 at 2 ¶ 1), the
complaint seeks damages in the amount of $35.96, plus costs, and two credit
cards, one from Haband and one from “Blair,” each with zero percent APR 1 and a
$1,500.00 credit limit. (Doc. 1 at 1 ¶ 1-4.)
Magistrate Judge Carlson issued a comprehensive R&R, and because
there is no indication that plaintiff has paid the filing fee and she apparently seeks
in forma pauperis status, the R&R granted plaintiff leave to proceed in forma
pauperis. The R&R recommends that we dismiss the state law claims for failure
to state a claim upon which relief can be granted in federal court, without
prejudice to plaintiff filing this action in the appropriate Pennsylvania Court of
Common Pleas. (R&R at 9-10.) See 28 U.S.C. §1915(e)(2)(B)(ii). For the
reasons that follow, we will adopt Magistrate Judge Carlson’s R&R.
Our subject matter jurisdiction over this case is in question and will be
A credit card’s interest rate is the price you pay for borrowing money. For credit
cards, the interest rates are typically stated as a yearly rate. This is called the
annual percentage rate (APR). https://www.consumerfinance.gov/ask-cfpb/whatis-a-credit-card-interest-rate-what-does-apr-mean-en-44/ (Accessed October 5,
Standard of review
When determining the disposition of objections to a magistrate judge’s
R&R, the district court must make a de novo determination of those portions of
the report against which objections are made. 28 U.S.C. § 636(b)(1)(c); see also
Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983). We may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the
magistrate judge. Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987).
Courts are required to liberally construe pro se litigant’s pleadings. Higgs
v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011). The Supreme Court has held
that pro se complaints should be held “to less stringent standards than formal
pleadings drafted by lawyer.” Haines v. Kerner, 404 U.S. 519, 520 (1972). This
leniency, however, has its limits and litigants, even those proceeding pro se,
“cannot flout procedural rules – they must abide by the same rules that apply to
other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)).
Federal district courts, as courts of limited jurisdiction, have a continuing
duty to satisfy themselves of jurisdiction before addressing the merits of the case.
Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1049 (3d Cir. 1993) cert. denied
sub nom Upp v. Mellon Bank, N.A., 510 U.S. 964 (1993). Moreover, federal
courts have the obligation to address the question of subject matter jurisdiction
sua sponte. Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217 (3d
Cir. 1999); see generally Nelson v. Keefer, 451 F.2d 289, 293-95 (3d Cir. 1971)
(finding that the federal judiciary has been too cautious in addressing the large
number of cases which do not belong in federal courts). 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).
Pursuant to 28 U.S.C. § 1332, jurisdiction is proper in federal district court
where the action involves citizens of different states and an amount in
controversy, exclusive of interest and costs, in excess of $75,000.00. See 28
U.S.C. § 1332(a). In the absence of such diversity, jurisdiction can be sustained
on the ground that the complaint raises a federal question. 28 U.S.C. § 1331.
Here, plaintiff asserts neither diversity nor federal question jurisdiction. On
its face, the complaint in the instant case identifies plaintiff as a resident of
Tennessee, and we recognize defendant is a business that has at least one
facility in Pennsylvania. Thus, it is possible that the parties may be diverse, but
even if they are, the amount in controversy is clearly well below the minimum
amount of $75,000.00, exclusive of interest and costs, the jurisdictional threshold
set forth in 28 U.S.C. §1332(a). Plaintiff seeks two credit cards with $1,500.00
credit limits and damages of $35.96.
Further, plaintiff’s complaint does not assert federal question jurisdiction.
Plaintiff agues federal jurisdiction based upon the fact that she filed pursuant to
Rule 65 of the Federal Rules of Civil Procedure. Despite plaintiff’s protestations
to the contrary, Rule 65 does not confer jurisdiction. A motion for a preliminary
injunction or a temporary restraining order does not, alone, confer subject matter
jurisdiction on a federal court; instead, an independent basis for asserting federal
question or diversity jurisdiction must be shown in order for the court to grant
injunctive relief. Vis Vires Group, Inc. v. Endonovo Therapeutics, Inc., 149 F.
Supp. 3d 376, 381 (E.D.N.Y. 2016); Peterson v. Sears, 238 F. Supp. 12 (N.D.
Iowa 1964) (Federal rule governing injunctions does not purport to confer
jurisdiction on federal courts but restricts power of courts to act in cases in which
they have already acquired jurisdiction.) In accord Moses Taylor Lodge No. 95 of
Brotherhood of Railroad Trainmen v. Delaware, L. & W. R. Co., 39 F. Supp. 456
(M.D. Pa. 1941) (citations omitted), see also FED. R. CIV. P. 65(a); 28 U.S.C.A. §§
Accordingly, we have neither diversity jurisdiction nor federal question
jurisdiction. Plaintiff’s complaint will be dismissed without prejudice to her
pursuing her claims in an appropriate state court.
Thus, we will adopt Magistrate Judge Carlson’s R&R and deny plaintiff’s
objections. An appropriate order follows.
Date: October 30, 2017
s/James M. Munley ______
JUDGE JAMES M. MUNLEY
United States District Court
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