Reiss v. Reiss

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

SARAH REISS, )

)

Plaintiff, )

)

v. ) No. 4:22-cv-00702-HEA

)

SHARON REISS, )

)

Defendant. )

OPINION, MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Sarah Reiss 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, the Court will order plaintiff 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).

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To

state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere

possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “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. at 678. Determining whether

a complaint states a plausible claim for relief is a context-specific task that requires the reviewing

court to draw upon judicial experience and common sense. Id. at 679. The court must “accept as

true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir.

2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating

that court must accept factual allegations in complaint as true, but is not required to “accept as true

any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under 28 U.S.C. § 1915(e)(2), the Court must give it

the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal

construction” means that if the essence of an allegation is discernible, the district court should

construe the plaintiff’s complaint in a way that permits his or her claim to be considered within

the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even

pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of

law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d

912, 914-15 (8th Cir. 2004) (stating that federal courts are not required to “assume facts that are

not alleged, just because an additional factual allegation would have formed a stronger

complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not

mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes

by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

The Complaint

Plaintiff is a self-represented litigant who brings this civil action against defendant Sharon

Reiss, who is identified as plaintiff’s “trustee/general partner/mother.” (Docket No. 1 at 2). She

asserts that this Court has subject matter jurisdiction based on a federal question. (Docket No. 1 at

3). In particular, plaintiff claims that the issues involved in this case include: “fraud, larceny,

identity theft, theft, [and] tax fraud.”

In the “Statement of Claim,” plaintiff makes a number of disjointed accusations, many of

them conclusory in nature, and which are best understood if quoted in full:

Sharon Reiss changed her phone number, address, emails, and other

contact info when I attempted to receive [the] distributions I am

legally entitled to. She has filed my personal taxes incorrectly as

well as other tax related info. She has stolen over $400,000.00 from

me and my trust. She has taken advantage of me when I was a minor

in 2007 by signing me into a business where she stole the funds out

of my trust accounts and put them onto a business. She also

transferred my minors under the transfer to minors account to herself

the day before I became 18. I have not been able to contact her and

[she disappeared] on me. She currently is withholding over several

thousands of my legally entitled to money. I have a dissolution of

marriage stating she has no rights to handle or contest trusts, she has

forged marriage documents to manipulate stealing my dying

father[’]s money in 2003.

(Docket No. 1 at 5). Regarding the relief she seeks, plaintiff states:

I ask that all assets be returned directly. That the SLR II Limited

Partnership be closed [and] discontinued. I ask Sharon[’]s removal

to all legal entitlement to me. We recover my dad[’]s accounts [and]

securities. That Ben Keller be removed from contracts. That Ben

Keller [and] Sharon[’]s legal agreement for Ben to represent me to

be investigated due to him having sexual relations with my mom

during the time he gave her legal representation. That Michael[’]s

death certificate be amended to single/[divorced]. All damages

recovered.

According to plaintiff, those damages amount to at least $400,000, though she states that

she cannot be certain without access to her accounts. (Docket No. 1 at 6).

Discussion

Plaintiff is a self-represented litigant who is suing her mother for various financial

improprieties. Because she is proceeding in forma pauperis, the Court reviewed her complaint

pursuant to 28 U.S.C. § 1915. Based on that review, the Court has determined that it lacks subject

matter jurisdiction. As such, the Court will direct plaintiff to show cause as to why this case should

not be dismissed.

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).

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 that 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). 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 asserts that the Court has federal question

jurisdiction.

B. Federal Question Jurisdiction

Federal question jurisdiction gives district courts “original jurisdiction over civil actions

arising under the Constitution, laws, or treaties of the United States.” Griffioen v. Cedar Rapids &

Iowa City Ry. Co., 785 F.3d 1182, 1188 (8th Cir. 2015). See also 28 U.S.C. § 1331. Whether a

claim arises under federal law is determined by reference to the “well-pleaded complaint.” Great

Lakes Gas Transmission Ltd. P’ship v. Essar Steel Minn. LLC, 843 F.3d 325, 329 (8th Cir. 2016).

The well-pleaded complaint rule provides that jurisdiction exists only when a federal question is

presented on the face of a plaintiff’s properly pleaded complaint. Markham v. Wertin, 861 F.3d

748, 754 (8th Cir. 2017). See also Thomas v. United Steelworkers Local 1938, 743 F.3d 1134, 1139

(8th Cir. 2014) (“Under the well-pleaded complaint rule, a federal question must exist on the face

of the plaintiff’s properly pleaded complaint in order to establish federal question subject matter

jurisdiction”).

Plaintiff’s complaint must establish “either that federal law creates the cause of action or

that the plaintiff’s right to relief necessarily depends on the resolution of a substantial question of

federal law.” Williams v. Ragnone, 147 F.3d 700, 702 (8th Cir. 1998). See also Northwest South

Dakota Production Credit Ass’n v. Smith, 784 F.2d 323, 325 (8th Cir. 1986) (stating that “[a] non-

frivolous claim of a right or remedy under a federal statute is sufficient to invoke federal question

jurisdiction”). “If the asserted basis of federal jurisdiction is patently meritless, then dismissal for

lack of jurisdiction is appropriate.” Biscanin v. Merrill Lynch & Co., Inc., 407 F.3d 905, 907 (8th

Cir. 2005).

Here, plaintiff contends that the Court has federal question jurisdiction because her case

encompasses “fraud, larceny, identity theft, theft, [and] tax fraud.” This broad reference to alleged

tortious and criminal conduct, however, is not sufficient to establish the presence of federal

question jurisdiction. More specifically, plaintiff identifies no federal statutes, treaties, or

constitutional provisions as being at issue, and her suit is not against a federal official or federal

agency. In short, her complaint does not demonstrate “either that federal law creates the cause of

action or that [her] right to relief necessarily depends on the resolution of a substantial question of

federal law.”

C. Order to Show Cause

Subject matter jurisdiction is a threshold requirement for every case filed in federal court.

In the instant complaint, plaintiff has not adequately alleged the existence of a federal question.

Plaintiff will therefore be ordered to show cause in writing as to why this action should not be

dismissed. She will be given thirty days in which to comply. Failure to respond within thirty days

will result in the dismissal of this case without prejudice and without further notice.

D. Motion to Appoint Counsel

Plaintiff has 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 notes that plaintiff has not adequately alleged subject

matter jurisdiction, and has been ordered 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 plaintiffs 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 shall show cause in writing and within thirty

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

matter jurisdiction.

IT IS FURTHER ORDERED that if plaintiff fails to show cause in writing and within

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

subject matter jurisdiction, this case will be dismissed without prejudice and without further notice.

Dated this 18" day of August, 2022.

UNITED STATES DISTRICT JUDGE