Richmond v. Backyard Specialty Foods

Filing 7

ORDER granting 4 Motion for Leave to Proceed in forma pauperis; denying as moot 3 Motion to Appoint Counsel, dismissing 1 Complaint without prejudice for lack of subject matter jurisdiction. Signed by U.S. District Judge Lawrence L. Piersol on 7/17/17. (DJP)

FILED
UNITED STATES DISTRICT COURT

JUL 1 7 2017

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

COURTNEY RICHMOND,

4:17-CV-04074-LLP

Plaintiff,
ORDER DISMISSING

CASE WITHOUT PREJUDICE

BACKYARD SPECIALTY FOODS,
Defendants.

Plaintiff, Courtney Richmond, filed a pro se lawsuit alleging that
defendant. Backyard Specialty Foods, breached the contract between the two.
Docket 1. Richmond also moves for leave to proceed in forma pauperis. Docket
4, and moves the court to appoint him counsel. Docket 3.

A federal court may authorize the commencement of suit without

prepayment of fees when an applicant files an affidavit stating he is unable to
pay the costs of the lawsuit. 28 U.S.C. § 1915. Determining whether an

applicant is sufficiently impoverished to qualify to proceed in forma pauperis
under § 1915 is committed to the court's discretion. Cross v. Gen. Motors

Corp., 721 F.2d 1152, 1157 (8th Cir. 1983). "In forma pauperis status does
not require a litigant to demonstrate absolute destitution." Lee v. McDonald's
Corp., 231 F.3d 456, 459 (8th Cir. 2000). The Court finds that Richmond
satisfies § 1915, and grants his motion for leave to proceed in forma pauperis.

The Court finds that it lacks subject matter jurisdiction over the claims
in Richmond's complaint. "Federal courts are courts of limited jurisdictionf,]"
adjudicating only those suits arising under the Constitution and laws of the
United States or suits between citizens of different states. Kokkonen v.

Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); 28 U.S.C. § 1331 (federal
question jurisdiction); 28 U.S.C. § 1332 (diversity jurisdiction). A District
Court "has a special obligation to consider whether it has subject matter

jurisdiction in every case." Hart v. United States, 630 F.3d 1085, 1089 (8th Cir.
2011)"This obligation includes the concomitant responsibility 'to consider sua

sponte [the court's subject matter]jurisdiction . . . where . . . [the court]
believe[s] that jurisdiction may be lacking.'" Id. (quoting Clark v. Baka, 593
F.3d 712, 714 (8th Cir. 2010)).

Richmond's complaint does not raise a federal question. He raises only a
claim that defendant breached the contract between the two, a claim that does

not arise under federal law. "[A] suit 'arises under'federal law 'only when the

plaintiffs statement of his own cause of action shows that it is based upon
[federal law].'" Vaden v. Discover Bank, 556 U.S. 49,60 (2009)(quoting
Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908)). Richmond
does not explain in his complaint how his claim arises under federal law.
Therefore, the Court does not have jurisdiction over the complaint pursuant to
28 U.S.C. § 1331 .

Richmond's complaint does not allege diversity. Under 28 U.S.C.

§ 1332(a), "Diversity jurisdiction "requires an amount in controversy greater

than $75,000 and complete diversity of citizenship of the litigants." E3

Biofuels, LLC v. Biothane, LLC, 781 F.3d 972,975 (8th Cir. 2015)(quoting
OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007)).

"'Complete diversity of citizenship exists where no defendant holds citizenship
in the same state where any plaintiff holds citizenship.'" Id. (quoting OnePoint,
486 F.3d at 346). Richmond's complaint gives both his address and

defendants, and both are in South Dakota. Docket 1 at 1, 2. Therefore, the
Court does not have jurisdiction over the complaint pursuant to 28 U.S.C.
§ 1332(a).

Accordingly, it is ORDERED

1.

Richmond's motion for leave to proceed in forma pauperis (Docket
4) is granted.

2.

Richmond's complaint is dismissed without prejudice for lack of
subject matter jurisdiction.

3.

Richmond's motion to appoint counsel (Docket 3) is denied as
moot.

Dated July % V. 2017.
BY THE COURT:

fLawrence L. Piersol
United States District Judge
ATTEST:
JOSEPH

., Deputy