“The objection that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.” (internal citation omitted)
How later courts described this case
- “The objection that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.” (internal citation omitted)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
GEORGE KERSEY, )
)
Plaintiff, ) Civil Action No.
) 17-11635-ADB
v. )
)
DONALD J. TRUMP, )
)
Defendant. )
)
MEMORANDUM AND ORDER
BURROUGHS, D.J.
For the reasons stated below, the Court allows plaintiff’s motion for leave to proceed in
forma pauperis [ECF No. 2], dismisses the complaint for lack of subject matter jurisdiction, and
certifies that any appeal would be futile and thus not “taken in good faith” within the meaning of
28 U.S.C. § 1915(a)(3).
BACKGROUND
On August 29, 2017, Plaintiff George A. Kersey (“Kersey”) filed a self-prepared, class
action complaint naming Donald J. Trump, individually, as the sole defendant [ECF No. 1]
(“Compl.”). With the complaint, Kersey also filed an Application to Proceed in District Court
without Prepaying Fees or Costs [ECF No. 2].
Kersey alleges that he is a citizen of Rhode Island and that he receives mail at post office
boxes in Framingham, Massachusetts, and Narragansett, Rhode Island [Complaint ¶ 9]. Kersey
alleges that he “participated in the Second World War against Nazism” and now files this action
“to defend the Constitution and to remove [the Defendant] from office” [Id.]. Kersey seeks to
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bring this suit as a class action on behalf of more than 100 proposed class members [Id. ¶ 16]
pursuant to the Tenth Amendment of the United States Constitution [Id. ¶ 11].1 In the section of
the Complaint titled “IV. FACTUAL ALLEGATIONS” plaintiff alleges:
22. Defendant is a well-known business entrepreneur. It would appear that his
principal present goals are to engage in atomic warfare with [N]orth Korea and promote
his business interests in the Soviet Union, where he [is] more popular than in the United
States, with the blessing of his friend and war-criminal Putin. Defendant is know[n] for
his many business activities, many of which fail and have to be rescued by others. It is
time to rescue the United States.
Id.
The Court’s records indicate that Kersey has appeared in this Court both as an attorney2
and as a pro se litigant. See e.g. Kersey v. Staples, 17-11267-NMG (pending); Kersey v. Am.
Honda Fin. Corp., 16-12631-FDS (pending); Kersey v. Peoples’ United Bank, et al., 16-12414-
PBS (closed); Kersey v. Becton Dickinson and Co., 16-10495-LTS (closed); Kersey, et al. v.
Prudential Ins. Agency LLC, 15-14186-GAO (closed); Fraser, et al. v. Gortons, 12-10479-RGS
(closed); Kersey v. Sears Roebuck & Co., 08-11720-RWZ (closed); and Kersey v. Sears
Roebuck & Co., 08-10800-RWZ (closed). Kersey has since been disbarred. In re George E.
Kersey, 444 Mass. 65 (2005).
DISCUSSION
Upon review of Kersey’s motion to proceed in forma pauperis, the Court concludes that
he is without income or assets to pay the $400.00 filing fee. Since plaintiff is proceeding pro se,
1 The Tenth Amendment provides that “[t]he powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” Const. Amend. X.
2 See, e.g. Brown v. Flood, 97-12645-EFH; Bonis v. Kaplan, 97-12522-EFH; Costello v.
McManus, 94-10552-NG; and Defazio v. Delta Air Lines, 92-13000-RCL.
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the Court will construe his complaint generously. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines
v. Kerner, 404 U.S. 519, 520 (1972).
A court has an obligation to inquire sua sponte into its own subject matter jurisdiction.
See McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004). A federal court is a court of limited
jurisdiction, and may adjudicate only those cases authorized by the Constitution and by
Congress. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). “If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.” Fed. R. Civ. P. 12(h)(3); see Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006) (“The
objection that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a
court on its own initiative, at any stage in the litigation, even after trial and the entry of
judgment.” (internal citation omitted)).
Article III of the Constitution limits the jurisdiction of federal courts to cases or
controversies. U.S. Const. art. III, § 2, cl. 1. These prerequisites reflect the “common
understanding of what it takes to make a justiciable case.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 102 (1998). Consequently, Kersey must show that: (1) he personally has
suffered some actual or imminent injury as a result of the challenged conduct; (2) the injury can
fairly be traced to that conduct; and (3) the injury likely will be redressed by a favorable decision
from the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). “‘The party
invoking federal jurisdiction bears the burden of establishing’ standing.” Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 411-12 (2013) (quoting Lujan, 504 U.S. at 561); see also Simon v.
Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976) (“That a suit may be a class
action, however, adds nothing to the question of standing, for even named plaintiffs who
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represent a class must allege and show that they personally have been injured, not that injury has
been suffered by other, unidentified members of the class to which they belong and which they
purport to represent.” (citation and quotation marks omitted)). “Plaintiffs may not establish their
standing to bring suit merely because they disagree with a government policy or because they
share the ‘generalized interest of all citizens in constitutional governance.’” Moss et al. v.
Spartanburg Cnty. Sch. Dist. Seven, 683 F.3d 599, 604–05 (4th Cir. 2012) (quoting Schlesinger
v. Reservists Comm. to Stop the War, 418 U.S. 208, 217 (1974)). If a plaintiff does not have
standing to bring suit, then the Court lacks jurisdiction to decide the case on its merits. United
States v. AVX Corp., 962 F.2d 108, 113 (1st Cir. 1992).
Here, the Court concludes that Kersey’s attempt to invoke the jurisdiction of this Court
falls short of the constitutional requirements for standing. Kersey has failed to allege any direct
personal injury, actual or imminent, that he has suffered as a result of Defendant’s alleged
actions. Despite Kersey’s numerous allegations concerning President Trump’s fitness for office
and the damage allegedly caused, Kersey’s challenge is essentially a statement of dissatisfaction
with various political decisions and actions taken by President Trump. Although Kersey
describes harm that has been done to others, including an allegation that the Defendant is partly
responsible for injuries sustained during recent protests in Charlottsville, Virginia, as well as
generalized harms, the complaint fails to show how President Trump specifically injured Kersey
in a manner apart from the general population. For example, alleging that President Trump is
opposed to climate change and was not elected by popular vote, Compl. at 4, is not enough to
demonstrate that Kersey has standing to file this lawsuit. Thus, the complaint must be dismissed
for lack of standing.
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ORDER
Based upon the foregoing, it is hereby ORDERED that:
1. Plaintiff’s motion for leave to proceed in forma pauperis [ECF No. 2] is granted.
2. This action is dismissed pursuant to Fed. R. Civ. P. 12(h)(3) for lack of subject matter
jurisdiction.
3. The Court finds, and hereby certifies, that any appeal by Kersey of the matters discussed
in this Memorandum and Order would be futile, and therefore not “taken in good faith”
within the meaning of 28 U.S.C. § 1915(a)(3).
SO ORDERED.
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
UNITED STATES DISTRICT JUDGE
December 18, 2017
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