DeMarsh v. Shipman et al
MEMORANDUM OPINION. It is therefore ORDERED that Plaintiffs case is hereby DISMISSED without prejudice for lack of subject matter jurisdiction. It further ORDERED that the Clerk is directed to close this civil action. Signed by Judge Amos L. Mazzant, III on 1/23/2015. (pad, )
United States District Court
EASTERN DISTRICT OF TEXAS
JUDGE SHIPMAN and
FARMERS INSURANCE COMPANY
CASE NO. 4:14-CV-498
Plaintiff Gerald DeMarsh, proceeding pro se and seeking to proceed in forma pauperis,
brings this lawsuit against State District Judge Shipman from Denton County and Farmers Insurance
Plaintiff’s complaint, brief, and other documents submitted to the Court are an ambiguous,
directionless account of the alleged events; however, a thorough review of the record indicates the
following allegations: On February 1, 2013, Plaintiff was involved in an automobile accident in
Denton County. It appears that Plaintiff filed suit in state court and Defendant Judge Shipman was
the presiding judge. Plaintiff asserts that Judge Shipman failed to schedule his case for a jury trial.
Plaintiff files this lawsuit against Judge Shipman for failure to do her duty and schedule his jury trial.
Plaintiff sues Defendant Farmers Insurance Company for alleged damages from his automobile
accident. However, Farmers Insurance Company is the insurance carrier for the insured Chris
Crutcher, who the Court presumes was the other person involved in the February 1st automobile
The Court must now determine whether it has subject matter jurisdiction over this case.
Federal subject-matter jurisdiction can arise under either federal question jurisdiction under 28
U.S.C. § 1331, or diversity of citizenship jurisdiction under 28 U.S.C. § 1332. It is the party, in this
case Plaintiff, who asserted the federal jurisdiction, who bears the burden of proof. In order to have
diversity jurisdiction, the suit must involve a controversy between citizens of different states. 28
U.S.C. § 1332. On its face, it is clear that Plaintiff’s complaint includes one Texas defendant, and
therefore jurisdiction does not arise under diversity jurisdiction. In determining if a complaint raises
a federal question, the Court must determine if the complaint raises issue of federal law, arising
under the Constitution, laws, or treaties of the United States. Howery v. Allstate Ins. Co., 243 F.3d
912, 916 (5th Cir. 2001). Plaintiff has also not asserted a federal cause of action.
Plaintiff does assert that he feels he cannot get a fair trial in the Denton County courts, but
even if this were true, that is not a basis for this Court to exercise jurisdiction. The Court would
remind Plaintiff that federal courts are courts of limited jurisdiction. Plaintiff has asserted no claim
under the United States Constitution nor a claim under any federal statute. Therefore, Plaintiff’s case
must be dismissed for lack of federal subject matter jurisdiction.1
It is therefore ORDERED that Plaintiff’s case is hereby DISMISSED without prejudice for
lack of subject matter jurisdiction.
It further ORDERED that the Clerk is directed to close this civil action.
The Court also points out that United States District Judge Ron Clark ordered on August 5, 2014, in
4:14-cv-142 “that until Mr. DeMarsh has paid the full filing fee for this case, the clerk of the court shall seal any
further Complaint, Petition, Motion, or other paper filed by Mr. DeMarsh as a new suit, and forward the same to the
judicial officer to whom the case is assigned to determine whether the pleading should be struck, or alternatively
determined to appear to state facts supporting a claim within the jurisdiction of this court for which relief might,
under the law, be granted.” (Dkt. #21 in 4:14-cv-142). Judge Clark also found that Mr. DeMarsh was allowed to file
his case in 4:14cv142 in forma pauperis, that is, without paying a fee, but “[h]e has grossly abused that privilege.”
Id. This case was filed one day prior to Judge Clark’s order. However, this case follows the same pattern outlined by
SIGNED this 23rd day of January, 2015.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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