Brown v. Winscott

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CAROL BROWN, )

)

Plaintiff, )

)

v. ) No. 4:21-cv-01071-SRW

)

RAENA WINSCOTT, )

)

Defendant. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Carol Brown for leave to

commence this civil action without prepayment of the required filing fee. (Docket No. 2). Having

reviewed the motion, the Court finds that it should be granted. See 28 U.S.C. § 1915(a)(1).

Additionally, for the reasons discussed below, plaintiff will be directed to show cause as to why

this case should not be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P.

12(h)(3).

Discussion

Plaintiff is a self-represented litigant who has filed a civil action alleging breach of contract

against defendant Raena Winscott. (Docket No. 1 at 1). She asserts that this Court has subject

matter jurisdiction under 28 U.S.C. § 1332, based on diversity of citizenship.

A. Federal Subject Matter Jurisdiction

Subject matter jurisdiction refers to a court’s power to decide a certain class of cases.

LeMay v. U.S. Postal Serv., 450 F.3d 797, 799 (8th Cir. 2006). “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.” Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534, 541 (1986). See also Gunn v. Minton, 568 U.S. 251, 256 (2013) (“Federal courts are

courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.”).

The presence of subject matter jurisdiction is a threshold requirement that must be assured in every

federal case. Kronholm v. Fed. Deposit Ins. Corp., 915 F.2d 1171, 1174 (8th Cir. 1990). See also

Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987) (“The threshold requirement in every

federal case is jurisdiction and we have admonished the district court to be attentive to a

satisfaction of jurisdictional requirements in all cases.”). As such, the issue of subject matter

jurisdiction may be raised at any time, by any party or the court. Gray v. City of Valley Park, Mo.,

567 F.3d 976, 982 (8th Cir. 2009).

B. Diversity of Citizenship Jurisdiction Under 28 U.S.C. § 1332

Federal courts have subject matter jurisdiction over both federal question cases and

diversity of citizenship cases. See Auto-Owners Ins. Co. v. Tribal Court of Spirit Lake Indian

Reservation, 495 F.3d 1017, 1020 (8th Cir. 2007) (finding subject matter jurisdiction is lacking if

neither diversity of citizenship nor federal question jurisdiction applies); and McLaurin v. Prater,

30 F.3d 982, 984-85 (8th Cir. 1994) (noting that Congress has directed that district courts shall

have jurisdiction in both federal question and diversity cases). As noted above, plaintiff states that

this Court has jurisdiction pursuant to 28 U.S.C. § 1332. “Under 28 U.S.C. § 1332(a), district

courts have original diversity jurisdiction over civil actions when the matter in controversy exceeds

$75,000, without considering interest and costs, and when the citizenship of each plaintiff is

different from the citizenship of each defendant.” Ryan ex rel. Ryan v. Schneider Nat. Carriers,

Inc., 263 F.3d 816, 819 (8th Cir. 2001).

With regard to the amount in controversy, a complaint making a good faith allegation of

the jurisdictional amount is sufficient to confer jurisdiction. Scottsdale Ins. Co. v. Universal Crop

Prot. All., LLC, 620 F.3d 926, 931 (8th Cir. 2010). However, a “complaint will be dismissed if it

appears to a legal certainty that the claim is really for less than the jurisdictional amount.” Id. See

also Kopp v. Kopp, 280 F.3d 883, 884 (8th Cir. 2002). “The legal certainty standard is met where

the legal impossibility of recovery is so certain as virtually to negative the plaintiff’s good faith in

asserting the claim.” Peterson v. The Travelers Indem. Co., 867 F.3d 992, 995 (8th Cir. 2017).

As to diversity of the parties, “[c]omplete diversity of citizenship exists where no defendant

holds citizenship in the same state where any plaintiff holds citizenship.” OnePoint Solutions, LLC

v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007). Diversity jurisdiction requires the parties be citizens

of different states, not merely residents. Sanders, 823 F.2d at 216. For purposes of diversity, state

citizenship requires an individual’s physical presence in the state coupled with an indefinite

intention there to remain. Blakemore v. Missouri Pac. R.R. Co., 789 F.2d 616, 618 (8th Cir. 1986).

C. Failure to Prove Subject Matter Jurisdiction

The burden of proving subject matter jurisdiction belongs to the plaintiff. V S Ltd. P’ship

v. Dep’t of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000). In this case, plaintiff has

failed to establish the existence of subject matter jurisdiction for two reasons.

First, plaintiff has not shown that the amount in controversy exceeds the jurisdictional

threshold. In point of fact, there is no amount alleged whatsoever. Plaintiff’s form complaint

contains a section for asserting a jurisdictional amount, but in that section, plaintiff has written

“please review exhibits.” (Docket No. 1 at 5). However, in the “Sworn Affidavit of Carol Brown”

which is attached to the complaint, there is no mention of specific damages, and certainly no

amount approaching $75,000. (Docket No. 1 at 7-8). Plaintiff references monetary figures of

$4,000 and $2,000 respectively, but neither of these appear to relate to her financial losses, and are

nevertheless well below the threshold.

Second, plaintiff has not established diversity between the parties. For diversity of

citizenship to exist, plaintiff cannot be a citizen of the same state as defendant. Here, though,

plaintiff has provided Missouri addresses for both herself and defendant. Moreover, in the section

of the form complaint for demonstrating the citizenship of the parties, plaintiff has indicated that

both herself and defendant are Missouri citizens. The Court notes that plaintiff has certified these

assertions. (Docket No. 1 at 6). Because both plaintiff and defendant are citizens of the same state,

the Court does not have subject matter jurisdiction under 28 U.S.C. § 1332, and the case appears

subject to dismissal.

D. Order to Show Cause

As discussed above, plaintiff has the burden of establishing the Court’s subject matter

jurisdiction. In this case, she has asserted that the Court has jurisdiction under 28 U.S.C. § 1332.

However, plaintiff has not provided a jurisdictional amount, and she has specifically indicated that

there is no diversity of citizenship, as both herself and defendant are Missouri citizens. Therefore,

the Court will order plaintiff to show cause as to why this action should not be dismissed for lack

of jurisdiction. Plaintiff will be given thirty (30) days to submit a written response. Failure to

comply with this order will result in the dismissal of this case without prejudice and without further

notice.

E. Motion to Appoint Counsel

Plaintiff also filed a motion to appoint counsel. (Docket No. 3). In civil cases, a pro se

litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721

F.3d 940, 942 (8th Cir. 2013). Rather, a district court may appoint counsel in a civil case if the

court is “convinced that an indigent plaintiff has stated a non-frivolous claim…and where the

nature of the litigation is such that plaintiff as well as the court will benefit from the assistance of

counsel.” Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to

appoint counsel for an indigent litigant, a court considers relevant factors such as the complexity

of the case, the ability of the pro se litigant to investigate the facts, the existence of conflicting

testimony, and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty.

Jail, 437 F.3d 791, 794 (8th Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not

warranted at this time. In particular, the Court has determined plaintiff has failed to adequately

allege the Court’s subject matter jurisdiction, and has ordered her to show cause as to why this

case should not be dismissed. The Court will entertain future motions for appointment of counsel

as the case progresses, if appropriate.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (Docket

No. 3) is DENIED at this time.

IT IS FURTHER ORDERED that plaintiff is ordered to show cause in writing and within

thirty (30) days of the date of this order as to why this action should not be dismissed for lack of

subject matter jurisdiction.

IT IS FURTHER ORDERED that if plaintiff fails to submit a show cause response in

writing and within thirty (30) days of the date of this order, this action will be dismissed without

prejudice and without further notice.

Dated this 6th day of January, 2022.

/s/ Stephen R. Welby_____________

STEPHEN R. WELBY

UNITED STATES MAGISTRATE JUDGE