Smith v. Holliday et al

Filing 16

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 3/27/2018. 9 Plaintiff's motion for taxation of costs DENIED as moot. 11 Plaintiff's motion for default judgment DENIED as moot. Case DISMISSED WITHOUT LEAVE TO AMEND for failure to state a claim under 28 USC §1915(e)(2)(B) and FRCP 12(b)(6). (cc: all counsel, via mail to Charmane Smith)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CHARMANE SMITH,
Plaintiff,
v.

Case No. 17-cv-487-pp

AMERICAN DENTAL
PROFESSIONAL SERVICES,
Defendant.
ORDER DENYING AS MOOT PLAINTIFF’S MOTION FOR TAXATION OF
COSTS (DKT. NO. 9), DENYING AS MOOT PLAINTIFF’S MOTION FOR
DEFAULT JUDGMENT (DKT. NO. 11) AND DISMISSING THE CASE
WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM

I.

Background
On April 4, 2017, the plaintiff filed a complaint without the assistance of

a lawyer. Dkt. No. 1. In that complaint, the plaintiff—a Tennessee resident—
alleged that one of the defendants, Alane Holliday, performed various
procedures on her, including pretending to take mouth x-rays, possibly taking
an unrequested abdomen x-ray, showing the plaintiff films of x-rays that were
not hers, and giving the plaintiff false diagnoses and advice. Id. at 1-2. The
complaint was not on the court’s form—the plaintiff created it, and titled it
“Diversity Jurisdiction Pursuant to Title 28 U.S.C. { 1332.” Id. at 1.
The court screened the plaintiff’s complaint on May 8, 2017. Dkt. No. 5.
In the screening order, the court observed that while the plaintiff stated that
she brought her claim under “diversity jurisdiction,” she had not alleged
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complete diversity of citizenship. The plaintiff’s original complaint said that she
was a resident of Tennessee, that defendant Alane Holliday was a resident of
Tennessee and that defendant American Dental Professional Services was a
resident of Wisconsin. Id. at 1-2. The court explained to the plaintiff that, for a
federal court to exercise its diversity jurisdiction under 28 U.S.C. §1332, the
citizenship of each plaintiff must be diverse from the citizenship of each
defendant. Id. at 2 (citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)). The
court explained that because the plaintiff had not alleged complete diversity of
citizenship, the court could not consider the merits of her case. The court
dismissed the complaint, but said that “if, within sixty days of the date of this
order, the plaintiff files an amended complaint demonstrating either complete
diversity or a federal claim, [the court] may reopen the case.” Id. at 2-3.
On June 9, 2017, the plaintiff filed several items, including, (1) an
amended complaint, dkt. no. 7; (2) an application for injunction, dkt. no. 8;
and (3) a “Motion for Taxation of Costs and In Forma Pauperis,” dkt. no. 9.
About two and a half months later, the plaintiff filed several additional
documents, including (1) a request for entry of default, dkt. no. 10; (2) a motion
for default judgment, dkt. no. 11; and (3) an affidavit for entry of default, dkt.
no. 12.
II.

Discussion
A.

Amended Complaint (Dkt. No. 7)

Before addressing the plaintiff’s pending motions, the court considers
whether the plaintiff has complied with the court’s May 8, 2017 order—in other
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words, the court must determine whether it has jurisdiction to proceed to the
merits of the plaintiff’s case.
The amended complaint differs from the original complaint in several
ways. The amended complaint no longer names “Alane Holliday” as a
defendant; the plaintiff has named only “American Dental Professional
Services[.]” Dkt. No. 7 at 1. The amended complaint no longer contains
allegations of improper x-rays or of fraudulent advice. The amended complaint
increases the amount of requested damages from $5,000,000 to $45,000,000.
Id. at 2.
The body of the complaint contains three factual allegations. First, the
plaintiff says that Alane Holliday is a dentist “who is either an employee or
franchisee of the Defendant.” Id. at ¶1. Second, she alleges that “Alane Holliday
caused negligent and/or malicious injury to my facial nerve and tooth by
failing to remove a toothbrush bristle from between my teeth; that she admitted
to seeing.” Id. at ¶2. Finally, the plaintiff states that Holliday’s failure to remove
the toothbrush bristle resulted in facial paralysis as well as damage to the
tooth, “which fractured and broke in half on Thursday, May 11, 2017.” Id. at
¶3.
As the court noted in its previous order, a federal court has diversity
jurisdiction in cases where the suit is between “citizens of different States,” 28
U.S.C. §1332(a)(1), and the amount in controversy exceeds $75,000.00, 28
U.S.C. §1332(b). Diversity jurisdiction “applies only to cases in which the

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citizenship of each plaintiff is diverse from the citizenship of each defendant.”
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).1
By removing Alane Holliday as a defendant, the plaintiff has removed the
one obviously non-diverse defendant. The amended complaint now involves a
suit by a Tennessee resident (the plaintiff) against what she states is a
Wisconsin company, for damages in excess of $75,000. The Supreme Court has
held, however, that a plaintiff cannot defeat the statutory requirement of
complete diversity by suing only those defendants of diverse citizenship and

A Westlaw search indicates that the plaintiff should be aware of the
jurisdictional requisites to filing in federal district court. The plaintiff has filed
cases in federal district courts across the nation. See Comenity Bank v. Smith,
Civ. Action No. 16-1229-RGA, 2017 WL 1293988, at *1, n.1 (D. Del. Apr. 5,
2017) (collecting cases and noting that the plaintiff “has been barred from filing
actions in at least five other districts.”). It appears that, in 2017 alone, seven
other district courts issued decisions dismissing the plaintiff’s claims, either for
lack of jurisdiction or failure to state a claim. See Smith v. Haband,
3:17cv1677, 2017 WL 4883252 (M.D. Penn. Oct. 30, 2017) (dismissing case for
lack of diversity and federal question jurisdiction); Smith v. Donald, Case No.
2:17-CV-496-GCS, 2017 WL 2619338 (S.D. Ohio June 16, 2017) (dismissing
case on Rooker-Feldman doctrine, judicial immunity, for failure to state a claim
under the FCBA and FCRA, and for lack of jurisdiction over state law claims);
Smith v. Microsoft Corp., Case No. C16-1771-RAJ, 2017 WL 1543332 (W.D.
Wash. Apr. 28, 2017) (dismissing the allegations as “lack[ing] any conceivable
basis in fact and fail[ing] to state a plausible claim”); Smith v. World Financial
Network Bank, 2:17-cv-002, 2017 WL 480415 (S.D. Ohio Feb. 6, 2017)
(“complaint fails to allege sufficient facts to convince this court that recoverable
damages will bear a reasonable relationship to the minimum jurisdictional
floor”); Smith v. Olson, No 1:17-CV-44-TWT, 2017 WL 5244188 (N.D. Ga. Jan.
12, 2017) (dismissing case as frivolous); Smith v. MasterCard Int’l., No. 4:16cv-1866-CDP, 2017 WL 103966, at *3 (E.D. Mo. Jan. 10, 2017) (“[p]laintiff has
failed to allege facts as basic as the identity of the third party or parties, or any
other facts that would potentially give rise to a plausible claim.”); Smith v.
American Express, Case No. 17-cv-60023-BLOOM/Valle, 2017 WL 5447906
(S.D. Fla. Jan. 6, 2017) (dismissing plaintiff’s case for failing to make
allegations sufficient to establish the diversity of the parties).
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waiting for those defendants to implead non-diverse defendants. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
Here, although the plaintiff has not named the non-diverse defendant
(Ms. Holliday) as a defendant, the amended complaint states allegations and
claims only against Holliday. The only place in the body of the amended
complaint where the plaintiff mentions American Dental Professional Services
is when she says that Holliday is an employee or franchisee of American
Dental. She makes no allegations against American Dental Professional
Services itself. It appears to the court that the plaintiff still is attempting to sue
Holliday, not American Dental Professional Services, but that she removed
Holliday’s name as a defendant in order to “create” federal jurisdiction. This is
exactly what the Supreme Court has said she cannot do.
The other jurisdictional issue raised by the amended complaint is that
American Dental Professional Services, which the plaintiff states is located at
9054 N. Deerbrook Trail in Milwaukee, appears to be a limited liability
corporation. The Better Business Bureau web site lists the defendant as an
LLC.2 There is also an American Dental Professional Services, LLC listed on the
Wisconsin Department of Financial Institutions’ web site; it is listed as having

American Dental Professional Services, LLC., BETTER BUSINESS BUREAU,
https://www.bbb.org/wisconsin/business-reviews/dental-plans/americandental-professional-services-llc-in-milwaukee-wi-44253586 (last visited Mar.
26, 2018).
2

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its principal office in Wakefield, Massachusetts and a registered agent in
Madison, Wisconsin.3
Civil Local Rule 8 for the Eastern District of Wisconsin states that “[i]f
any party is . . . [a] limited liability company . . . , the pleading or notice must
identify the citizenship of all members.” The plaintiff has not complied with this
rule, despite the fact that it appears that the only remaining defendant is a
limited liability company. The court has no idea whether the members of the
LLC are all diverse to the plaintiff. In fact, it is not even clear that the
defendant itself is a corporate resident of Wisconsin—the Department of
Financial Institutions lists it as a “foreign” corporation, with a principal office
in Massachusetts.4
It is possible, therefore, that this court does not have diversity
jurisdiction over the plaintiff’s case, and that the court should dismiss the case
for that reason alone.
Even if the court assumes, for the time being, that the plaintiff has not
left out a critical non-diverse defendant for the sole purpose of creating federal
jurisdiction, and even if it assumes that every member of the defendant LLC is
diverse, the court will dismiss the complaint, because it fails to state a claim.

American Dental Professional Services, LLC, WIS. DEP’T OF FIN. INSTITUTIONS,
https://www.wdfi.org/apps/CorpSearch/Details.aspx?entityID=A042286&has
h=1810155007&searchFunctionID=8e37e22a-5849-4276-b45675142a797280&type=Simple&q=american+dental+professional+services+llc
(last visited Mar. 26, 2018).
3

If it were to turn out that the defendant is a corporate resident of
Massachusetts, it is likely that the Eastern District of Wisconsin is not the
correct venue for the plaintiff’s suit, regardless of jurisdiction.
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Under 28 U.S.C. §1915(e)(2)(B), the court must dismiss a case filed by an
unrepresented plaintiff if the court determines that it “(i) is frivolous or
malicious; (ii) fails to state a claim upon which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from such relief.” For
this reason, district courts “screen” complaints filed by self-represented
plaintiffs, to determine whether the complaint must be dismissed under these
standards.
Under Federal Rule of Civil Procedure 8(a), the amended complaint must
provide a “short and plain statement of the claim showing that [the plaintiff] is
entitled to relief[.]”. A plaintiff does not need plead specific facts, and her
statement need only “give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To state a claim, a
complaint must contain sufficient factual matter, accepted as true, “that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,
550 U.S. at 556). The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts follow the
principles set forth in Twombly. First, the court must “identify[ ] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
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of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions
with
factual allegations. Id. Second, if there are well-pleaded factual allegations,
courts must “assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.” Id. As an unrepresented plaintiff, the court
is obliged to give the plaintiff’s pro se allegation, “however inartfully pleaded,” a
liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The body of the amended complaint mentions the named defendant once,
when it alleges that Ms. Holliday works as an employee or franchisee of the
defendant. The amended complaint does not allege any wrongdoing by
American Dental Professional Services. It does not allege that American Dental
Professional Services had knowledge of Holliday’s activities. The complaint does
not even clarify whether Holliday is an employee of American Dental Services,
or just a franchisee or even an independent contractor. Even construing the
plaintiff’s amended complaint liberally, as the court must do for pro se
complaints, the court cannot conclude that the plaintiff’s amended complaint
makes claims against anyone other than Ms. Holliday. This complaint simply
does not state a cause of action against the defendant, and the court will
dismiss it under Fed. R. Civ. P. 12(b)(6).5

The plaintiff also filed a document entitled “Application for Injunction Fed. R.
Civ. Pro. 65(a).” Dkt. No. 8. While the plaintiff called this an application for an
injunction, it is nothing more than a request for money damages (this time, in
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Because the plaintiff is an experienced litigant, and because the court
already has given her one chance to amend her complaint, the court will not
give her another.
B.

Motion for Taxation of Costs (Dkt. No. 9)

On the same day she filed the amended complaint, the plaintiff filed a
document titled “Motion for Taxation of Costs and In Forma Pauperis Fed. R.
Civ. Pro. 54(d) Title 28 U.S.C. { 1915.” Dkt. No. 9. It appears that the plaintiff
intended this to be an application for permission to proceed without paying the
filing fee for this case. She indicates in the motion that she has not been
employed for over five years and that she has no savings or assets. Id.
Even if the court were not dismissing the plaintiff’s complaint, it would
not grant this motion. Section 1915(a)(1) of Title 28 says that a court may
authorize a person to proceed in a civil case without prepaying the filing fee if
that person files a financial affidavit. The court has a form financial affidavit for
pro se plaintiffs to use; it allows them to list their income, assets and expenses
and to sign under penalty of perjury. The plaintiff did not file such an affidavit;
the court has nothing but her own statement that she has no assets.
As for her motion for taxation of costs under Fed. R. Civ. P. 54(d),
because the court is dismissing the complaint, that motion is moot. However,
the court would have denied that request, as well. Rule 54(d) allows a party

the amount of $15,000,000) for the allegations she made in the amended
complaint.
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who wins a lawsuit to recover costs. One cannot recover costs at the beginning
of a lawsuit, before the other side even knows that it has been sued.
C.

Motion for Default Judgment (Dkt. No. 11)

Finally, two and a half months after she filed her amended complaint,
the plaintiff filed a motion for default judgment. Dkt. No. 11. The motion says
nothing more than that it is based on the record, and on the plaintiff’s affidavit.
The plaintiff submitted an affidavit, which said that she served her application
for injunction by mail on June 6, 2017, that no one answered in a timely
fashion, and that “default has entered against the respondent.” Dkt. No. 12.
This motion is defective in numerous ways. Fed. R. Civ. P. 55 allows a
court to grant default judgment against a defendant who does not plead or
otherwise defend in response to a properly-served complaint. There is no
evidence that the amended complaint was served on the defendant. The court
did not order the amended complaint served. The court would not have ordered
the complaint served until after it had screened the complaint and determined
that there was a valid claim. So it is unlikely that the defendant is aware that it
has been sued, and therefore, there is no basis for the clerk to enter default
(which he has not done). The plaintiff says that she served the application for
injunction by mail. Even if she mailed that document to someone, Rule 55 does
not allow for default judgment for failure to respond to an application. It is
likely that the plaintiff mailed whatever she mailed to the dental office in
Milwaukee, which does not appear to be the corporate address for the
defendant. The court would not have granted this motion even were it not
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dismissing the complaint, and because it is dismissing the complaint, the
motion is moot.
III. Conclusion
The court ORDERS that this case is DISMISSED without leave to
amend for failure to state a claim under 28 U.S.C. §1915(e)(2)(B) and Federal
Rule of Civil Procedure 12(b)(6).
The court DENIES AS MOOT the plaintiff’s motion for taxation of costs.
Dkt. No. 9.
The court DENIES AS MOOT the plaintiff’s motion for default judgment.
Dkt. No. 11.
Dated in Milwaukee, Wisconsin this 27th day of March, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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