Falkner v. Pyramid Used Cars and its owners et al

Filing 4

ORDER OF DISMISSAL, Order Correcting the Docket, Order Certifying Appeal Not Taken in Good Faith, and Order Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by Judge S. Thomas Anderson on 11/18/11. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

BEVERLY J. FALKNER,
Plaintiff,
vs.
PYRAMID USED CARS, et al.,
Defendants.

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No. 11-2786-STA-cgc

ORDER CORRECTING THE DOCKET
ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On September 12, 2011, Plaintiff Beverly J. Falkner a/k/a
Beverly J. Richmond, a resident of Memphis, Tennessee, commenced a
pro se civil action and sought leave to proceed in forma pauperis.
(ECF Nos. 1 & 2.)1 On September 13, 2011, the Court granted leave
to proceed in forma pauperis. (ECF No. 3.) The Clerk shall record
the defendants as Pyramid Used Cars and Pyramid Financial.2

1

Plaintiff’s last name was changed after the events at issue. The
Clerk is directed to correct the docket to reflect Plaintiff’s alias, which is
the name under which she transacted business with Defendants.
2

The Complaint also purports to sue the “owners” of Pyramid Used Cars
and Pyramid Financial. (ECF No. 1 at 1.) Service of process cannot be made on a
fictitious party. The filing of a complaint against “John Doe” defendants does
not toll the running of the statute of limitation against those parties. See Cox
v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996); Bufalino v. Michigan Bell Tel.
Co., 404 F.2d 1023, 1028 (6th Cir. 1968). Thus, if Plaintiff seeks to sue any
other individual or entity, she must identify the defendant and file a new suit
in the appropriate court within the applicable statute of limitations.

The Complaint alleges that, on April 29, 2011, Plaintiff
purchased a used car from Pyramid Used Cars for $4999. Plaintiff
paid $1200 down and financed the balance, presumably with Pyramid
Financial. Plaintiff timely paid the first month’s installment
payment in May. (ECF No. 1 at 1.) Later in May, 2011, the vehicle
completely shut down, with the engine smoking. Plaintiff had the
vehicle towed to “his place of repair,” which presumably means a
garage designated by Pyramid Used Cars. Plaintiff later received a
call telling her that the vehicle was fine and ready to be picked
up after she paid a $200 charge for towing and the repair. When
Plaintiff inquired about the cause of the problem, Defendant stated
it was due to a lightbulb that was missing in the roof. Plaintiff
had removed the bulb because it would not go out. Plaintiff asked
Defendant to swap that car for another vehicle, and Defendant
refused. At the time, the car “still had drive out tags and had not
been through inspection.” (Id.)
Attached to the Complaint is a Notice of Plan to Sell
Property, dated May 27, 2011, which states that Pyramid Used Cars
intends to sell the vehicle at the Shelby County Courthouse in
Memphis, Tennessee, on July 9, 2011. (Id. at 3.)
Plaintiff

seeks

money

damages

in

the

amount

of

$8,888,888.88. (Id. at 1.) The Complaint further states that,
“[s]hould

explanation

assist

in

updating

or

amending

any

regulations, please tell President Obama to send me a check.” (Id.
at 2.)

2

The

Court

is

required

to

screen

in

forma

pauperis

complaints and to dismiss any complaint, or any portion thereof, if
the action—
(i)

is frivolous or malicious;

(ii)
fails to state a claim on which relief may be
granted; or
(iii)
seeks monetary relief against a defendant who
is immune from such relief.
28 U.S.C. § 1915(e)(2)(B).
In assessing whether the complaint in this case states a
claim on which relief may be granted, the standards under Fed. R.
Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, ___ U.S. ___,
___, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009), and in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S. Ct.
1955, 1964-66, 167 L. Ed. 2d 929 (2007), are applied. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all wellpleaded

allegations

‘consider[s]

the

in

the

factual

complaint

allegations

in

as

true,

[the]

the

Court

complaint

to

determine if they plausibly suggest an entitlement to relief.’”
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting
Iqbal, ___ U.S. at ___, 129 S. Ct. at 1951) (alteration in
original). “[P]leadings that . . . are no more than conclusions[]
are

not

entitled

to

the

assumption

of

truth.

While

legal

conclusions can provide the framework of a complaint, they must be
supported by factual allegations.” Iqbal, ___ U.S. at ___, 129 S.
Ct. at 1950; see also Twombly, 550 U.S. at 555 n.3, 127 S. Ct. at
1964-65 n.3 (“Rule 8(a)(2) still requires a ‘showing,’ rather than
3

a blanket assertion, of entitlement to relief. Without some factual
allegation in the complaint, it is hard to see how a claimant could
satisfy the requirement of providing not only ‘fair notice’ of the
nature

of

the

claim,

but

also

‘grounds’

on

which

the

claim

rests.”).
“A

complaint

can

be

frivolous

either

factually

or

legally. Any complaint that is legally frivolous would ipso facto
fail to state a claim upon which relief can be granted.” Hill, 630
F.3d at 470 (internal citation omitted).
Whether a complaint is factually frivolous under §§
1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from
whether it fails to state a claim for relief. Statutes
allowing a complaint to be dismissed as frivolous give
judges not only the authority to dismiss a claim based on
an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint’s
factual allegations and dismiss those claims whose
factual contentions are clearly baseless. Unlike a
dismissal for failure to state a claim, where a judge
must accept all factual allegations as true, a judge does
not have to accept “fantastic or delusional” factual
allegations as true in prisoner complaints that are
reviewed for frivolousness.
Id. at 471 (internal citations & quotation marks omitted).
“Pro se complaints are to be held to less stringent
standards than formal pleadings drafted by lawyers, and should
therefore be liberally construed.” Williams, 631 F.3d at 383
(internal quotation marks omitted). Pro se litigants, however, are
not exempt from the requirements of the Federal Rules of Civil
Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see
also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011)
(“[A] court cannot create a claim which [a plaintiff] has not

4

spelled out in his pleading”) (internal quotation marks omitted);
Payne v. Secretary of Treas., 73 F. App’x 836, 837 (6th Cir. 2003)
(affirming sua sponte dismissal of complaint pursuant to Fed. R.
Civ. P. 8(a)(2) and stating, “[n]either this court nor the district
court is required to create Payne’s claim for her”); cf. Pliler v.
Ford, 542 U.S. 225, 231, 124 S. Ct. 2441, 2446, 159 L. Ed. 2d 338
(2004) (“District judges have no obligation to act as counsel or
paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 F.
App’x 506, 510 (6th Cir. 2011) (“[W]e decline to affirmatively
require courts to ferret out the strongest cause of action on
behalf of pro se litigants. Not only would that duty be overly
burdensome, it would transform the courts from neutral arbiters of
disputes into advocates for a particular party. While courts are
properly charged with protecting the rights of all who come before
it, that responsibility does not encompass advising litigants as to
what legal theories they should pursue.”), petition for cert. filed
(U.S. Aug. 5, 2011) (No. 11-5908).
The first issue to be considered is whether the Court has
subject-matter jurisdiction over this action. “Federal courts are
courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute, which is not to be expanded
by judicial decree. It is to be presumed that a cause lies outside
this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.” Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S. Ct. 1673, 1675,
128 L. Ed 2d 391 (1994) (citations omitted); see also Bender v.
5

Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S. Ct. 1326,
1331, 89 L. Ed. 2d 501 (1986) (“Federal courts are not courts of
general jurisdiction; they have only the power that is authorized
by Article III of the Constitution and the statutes enacted by
Congress pursuant thereto.”), reh’g denied, 476 U.S. 1132, 106 S.
Ct. 2003, 90 L. Ed. 2d 682 (May 19, 1986); Insurance Corp. of
Ireland, Ltd. v. Compagnie des Bauxite de Guinee, 456 U.S. 694,
701, 102 S. Ct. 2099, 2104, 72 L. Ed. 2d 492 (1982) (“Federal
courts are courts of limited jurisdiction. The character of the
controversies over which federal judicial authority may extend are
delineated in Art. III, § 2, cl. 1. Jurisdiction of the lower
federal courts is further limited to those subjects encompassed
within a statutory grant of jurisdiction.”); Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 374, 98 S. Ct. 2396, 2403, 57 L. Ed.
2d 274 (1978) (“It is a fundamental precept that federal courts are
courts of limited jurisdiction.”). Federal courts are obliged to
act sua sponte whenever a question about jurisdiction arises. See,
e.g., Insurance Corp. of Ireland, Ltd., 456 U.S. at 702, 102 S. Ct.
at 2104 (“a court, including an appellate court, will raise lack of
subject-matter jurisdiction on its own motion”); St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 287 n.10, 58 S. Ct. 586,
589 n.10, 82 L. Ed. 845 (1938); Answers in Genesis, Inc. v.
Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009)
(“federal courts have a duty to consider their subject matter
jurisdiction in regard to every case and may raise the issue sua
sponte”). Under Rule 12(h)(3) of the Federal Rules of Civil
6

Procedure, “[i]f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”
Plaintiff’s Complaint does not comply with Rule 8(a)(1)
of the Federal Rules of Civil Procedure, which requires that “[a]
pleading that states a claim for relief” contain “a short and plain
statement of the grounds for the court’s jurisdiction.” Plaintiff’s
Complaint contains no jurisdictional allegations. It does not
appear that the Court has jurisdiction under the most common
provisions relied on by litigants.
Under 28 U.S.C. § 1331, which governs federal question
jurisdiction,

“[t]he

district

courts

shall

have

original

jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.” Plaintiff’s complaint does
not mention the United States Constitution or any federal law or
treaty and, therefore, the Court does not have federal question
jurisdiction.
The

Court

also

does

not

appear

to

have

diversity

jurisdiction. Diversity of citizenship means that the action is
between “citizens of different States.” 28 U.S.C. § 1332(a)(1). A
federal court has jurisdiction under § 1332 only if there is
“complete diversity between all plaintiffs and all defendants.”
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89, 126 S. Ct. 606, 613,
163 L. Ed. 2d 415 (2005) (citations omitted). “To establish
diversity jurisdiction, one must plead the citizenship of the
corporate and individual parties.” Naartex Consulting Corp. v.
Watt, 722 F.2d 779, 792 n.20 (D.C. Cir. 1983); see also Johnson v.
7

New York, 315 F. App’x 394, 395 (3d Cir. 2009) (per curiam) (“To
invoke diversity jurisdiction, Johnson was required to plead that
he is a citizen of a particular state and that the defendants are
citizens of a different state or states.”); Sanders v. Clemco
Indus., 823 F.2d 214, 216 (8th Cir. 1987) (complaint did not
properly

allege

diversity

jurisdiction);

Leys

v.

Lowe’s

Home

Centers, Inc., 601 F. Supp. 2d 908, 912-13 (W.D. Mich. 2009)
(complaint and notice of removal did not adequately establish
diversity jurisdiction); Ellis v. Kaye-Kibbey, No. 1:07-cv-910,
2008 WL 2696891, at *2-3 (W.D. Mich. July 1, 2008) (dismissing
complaint without prejudice for failure adequately to allege facts
establishing diversity of citizenship despite conclusory allegation
that diversity existed); 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1208 (3d ed. 2004). Pursuant to 28
U.S.C. § 1332(c)(1), “a corporation shall be deemed to be a citizen
of any State by which it has been incorporated and of the State
where it has its principal place of business.”
The Complaint does not allege that there is diversity
jurisdiction in this case. Plaintiff is a resident of Tennessee,
and the Complaint does not allege her citizenship. The Complaint
does not allege the places of incorporation and principal places of
business of Pyramid Used Cars and Pyramid Financial. According to
the Tennessee Secretary of State, Pyramid Used Cars is incorporated

8

in Tennessee.3 Therefore, there is no diversity jurisdiction even
if Pyramid Financial is a foreign corporation.
Therefore, the Court DISMISSES the action for want of
subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1)
and (h)(3). This dismissal is WITHOUT PREJUDICE.4 Judgment shall be
entered for Defendants.
The Court must also consider whether Plaintiff should be
allowed to appeal this decision in forma pauperis, should she seek
to do so. The United States Court of Appeals for the Sixth Circuit
requires that all district courts in the circuit determine, in all
cases where the appellant seeks to proceed in forma pauperis,
whether the appeal would be frivolous. Twenty-eight U.S.C. §
1915(a)(3) provides that “[a]n appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not
taken in good faith.”
Pursuant to the Federal Rules of Appellate Procedure, a
non-prisoner desiring to proceed on appeal in forma pauperis must
obtain pauper status under Fed. R. App. P. 24(a). See Callihan v.
Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999). Rule 24(a)(3)(A)
provides that if a party was permitted to proceed in forma pauperis
in the district court, she may also proceed on appeal in forma
pauperis without further authorization unless the district court
“certifies that the appeal is not taken in good faith or finds that

3
This information was obtained from WESTLAW’s Corporate Records and
Business Registrations — Tennessee, library.
4

Plaintiff can refile her suit in state court or she can file a new
suit in federal court if she identifies a basis for federal jurisdiction.

9

the party is not otherwise entitled to proceed in forma pauperis.”
If the district court denies pauper status, the party may file a
motion to proceed in forma pauperis in the Court of Appeals. Fed.
R. App. P. 24(a)(4)-(5).
The good faith standard is an objective one. Coppedge v.
United States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed. 2d
21 (1962). The test under 28 U.S.C. § 1915(a) for whether an appeal
is taken in good faith is whether the litigant seeks appellate
review of any issue that is not frivolous. Id. at 445, 82 S. Ct. at
921. It would be inconsistent for a district court to determine
that a complaint should be dismissed prior to service on the
defendants, but has sufficient merit to support an appeal in forma
pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir.
1983). The same considerations that lead the Court to dismiss this
case for failure to state a claim also compel the conclusion that
an appeal would not be taken in good faith. It is therefore
CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in
this matter by Plaintiff would not be taken in good faith and

10

Plaintiff may not proceed on appeal in forma pauperis. Leave to
proceed on appeal in forma pauperis is, therefore, DENIED.5
IT IS SO ORDERED this 18th day of November, 2011.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

5
If Plaintiff files a notice of appeal, she must also pay the full
$455 appellate filing fee or file a motion to proceed in forma pauperis and
supporting affidavit in the United States Court of Appeals for the Sixth Circuit
within thirty (30) days.

11