Terry v. Oncor Delivery et al

Filing 11

Order Accepting 7 Findings and Recommendation of the United States Magistrate Judge and Denying Certificate of Appealability. The court certifies that any appeal of this action would not be taken in good faith. The Court DENIES the 10 motion to amend as futile, DISMISSES this action without prejudice for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3), and WARNS Plaintiff that the Court may impose sanctions, including monetary sanctions payable to the Court and filing restrictions, for filing a frivolous lawsuit or otherwise abusing the litigation process. (Ordered by Chief Judge Jorge A Solis on 12/16/2014) (ykp)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KESHA TERRY,
Plaintiff,
v.
ONCOR DELIVERY, et al.,
Defendants.

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No. 14-CV-3496-P

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
On October 8, 2014, the assigned Magistrate Judge issued Findings, Conclusions, and
Recommendation (“FCR”) in which she recommended that the Court dismiss this action without
prejudice for lack of jurisdiction and warn Plaintiff that sanctions may be imposed should she persist
in filing frivolous or baseless actions. Plaintiff timely objected to the FCR (doc. 9), moved for leave
to amend her complaint (doc. 10), and filed a new complaint (doc. 8).
After reviewing all relevant matters of record in this case, including the issued FCR and the
subsequent filings of Plaintiff, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(3), the Court finds that the FCR is correct. It has conducted a de novo review and determination as to the issues to which Plaintiff has specifically objected. Having reviewed the remainder
of the FCR for clear error, it is satisfied that there is no clear error on the face of the record. The
Court hereby accepts the FCR as the Findings and Conclusions of the Court.
And as found by the Magistrate Judge, Plaintiff’s alleged facts provide no basis for federal
jurisdiction. Neither her new complaint nor her motion to amend provide a sufficient basis to find
that federal jurisdiction exists in this case. Although a plaintiff properly invokes federal question

jurisdiction under 28 U.S.C. § 1331 by pleading a colorable federal claim, the courts may dismiss
an action for lack of subject-matter jurisdiction when the purported federal claim “is ‘immaterial and
made solely for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and frivolous.’”
Arbaugh v. Y & H Corp., 546 U.S. 500, 513 & n.10 (2006) (quoting Bell v. Hood, 327 U.S. 678, 68283 (1946)). Courts properly dismiss an action for lack of subject-matter jurisdiction when the
purported federal “claim is so insubstantial, implausible, foreclosed by prior decisions of [the
Supreme] Court, or otherwise completely devoid of merit as not to involve a federal controversy.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (citation and internal quotation marks
omitted). A jurisdictional dismissal of a purported claim under the Racketeer Influenced and Corrupt
Organizations Act of 1970 (“RICO”) is warranted when the “complaint totally fails to set forth a
RICO claim.” Davison v. Grant Thornton LLP, No. 14-3084, 2014 WL 4345947, at *2 (10th Cir.
Sept. 3, 2014). The Magistrate Judge accurately noted that Plaintiff failed to allege any pattern of
racketeering activity or even a RICO enterprise. Plaintiff has not corrected her pleading deficiencies
in her proposed amended complaint. Given her factual allegations, Plaintiff’s invocation of RICO
is so insubstantial and frivolous so as to justify a jurisdictional dismissal. Accordingly, the Court
DENIES the motion to amend as futile, DISMISSES this action without prejudice for lack of
jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3), and WARNS Plaintiff that the Court may impose
sanctions, including monetary sanctions payable to the Court and filing restrictions, for filing a
frivolous lawsuit or otherwise abusing the litigation process.
Pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(3)(A), the Court hereby prospectively certifies that any appeal in this action would not be taken in good faith. In support of this
certification, the Court adopts and incorporates by reference the Findings, Conclusions, and Recom2

mendation issued on October 8, 2014. Based on that FCR, the Court finds that any appeal would
present no legal points of arguable merit and would therefore be frivolous. Plaintiff may challenge
this certification by filing a separate motion to proceed in forma pauperis on appeal with the Clerk
of Court, U.S. Court of Appeals for the Fifth Circuit. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997); Fed. R. App. P. 24(a)(5).
SO ORDERED this 16th day of December, 2014.

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JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE

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