Keys v. Moynihan

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

SIDNEY KEYS, )

)

Plaintiff, )

v. ) Case No. 4:23-cv-00666-SEP

)

BRIAN MOYNIHAN, )

)

Defendant. )

MEMORANDUM AND ORDER

Before the Court is pro se Plaintiff Sidney Keys’s Motion for Leave to Proceed in forma

pauperis.1 Doc. [2]. Upon review of the financial information provided, the Court finds that

Plaintiff is financially unable to pay any portion of the filing fee. Therefore, Plaintiff may

proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Also, for the reasons set forth below,

Plaintiff is directed to show cause 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 must dismiss a complaint filed in forma

pauperis if it is “frivolous or malicious,” or if it “fails to state a claim on 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,

“requiring the reviewing court to draw on its judicial experience and common sense.” Id. at 679

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). 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

1 The Court notes that Plaintiff Sidney Keys has previously filed nineteen (19) in forma pauperis civil

cases in this Court, all of which have been dismissed upon initial review for failure to state a claim,

voluntarily dismissed by Plaintiff, dismissed upon a Fed. R .Civ. P. 12(b)(6) motion, or dismissed for

failure to comply with a Court order. Plaintiff has three new civil filings that have not yet been reviewed

by the Court pursuant to 28 U.S.C. § 1915.

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

(court must accept factual allegations in complaint as true but need not “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 [the] 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 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) (federal courts need not “assume facts that are not alleged, just

because an additional factual allegation would have formed a stronger complaint”). 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.” McNeil v. United States, 508 U.S. 106, 113 (1993).

THE COMPLAINT

Plaintiff is a self-represented litigant who filed the instant civil action against the Chief

Operating Officer of Bank of America, Brian Moynihan. Doc. [1]. Plaintiff’s complaint does

not properly articulate a basis for this Court’s jurisdiction. Although Plaintiff checked the boxes

for both “Federal Question Jurisdiction” and “Diversity of Citizenship” on his “Civil Cover

Sheet,” he does not allege sufficient facts to support either basis for jurisdiction. Id. at 3.

Plaintiff claims to be a citizen of the state of Missouri. Id. He does not allege what state

Defendant Moynihan is a citizen of, although he states that Bank of America, Defendant’s

employer, is incorporated under the laws of the State of North Carolina. Id. Under the “Amount

in Controversy” section of the complaint, Plaintiff states, “Unknown.” Id.

Plaintiff alleges that, on some unspecified date, he applied for a “V.A. home loan” at

Bank of America in Olivette, Missouri, and was denied the loan. Id. at 5. He also claims that he

was denied a home equity loan by Bank of America in Florissant, Missouri, on an unspecified

date. Id. Plaintiff alleges that both denials were the result of racial discrimination. Id. He does

not indicate his race in the body of his complaint, nor does he state how Defendant Moynihan

was involved in the denials of his loan applications.

Plaintiff also claims: “I received a check in the mail for $568 from Bank of America

stating that it was a settlement from ‘Morris v. Bank of America’ on September 20, 2022.” Id.

He alleges that he has never heard of that settlement or case, and he “did not consent to represent

himself” in that action. Id. Plaintiff does not indicate what he did with the check or what law he

believes Defendant Moynihan violated with respect to the check.

DISCUSSION

I. Initial Review of Plaintiff’s Complaint

Because Plaintiff is proceeding in forma pauperis, his complaint is reviewed under 28

U.S.C. § 1915. Based on that review, the Court finds that Plaintiff has not met his burden of

establishing 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) (citation omitted). “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.”). “Subject-matter jurisdiction is a threshold requirement which must

be assured in every federal case.” Kronholm v. Fed. Deposit Ins. Corp., 915 F.2d 1171, 1174

(8th Cir. 1990) (citation omitted); 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.”).

The issue of subject matter jurisdiction may be raised at any time, by any party or by a court.

Gray v. City of Valley Park, 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) (subject matter jurisdiction is lacking if

neither diversity of citizenship nor federal question jurisdiction applies); McLaurin v. Prater, 30

F.3d 982, 984-85 (8th Cir. 1994) (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).

A. Federal question jurisdiction under 28 U.S.C. § 1331

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); 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 “federal 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) (“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).

B. Diversity of citizenship jurisdiction under 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). 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). But 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).

“Complete 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 that 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) (citation omitted).

C. Plaintiff fails to establish subject matter jurisdiction.

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

P’ship, 235 F.3d at 1112. In this case, Plaintiff has failed to establish subject matter jurisdiction.

As to diversity jurisdiction, Plaintiff has not shown that the amount in controversy

exceeds the jurisdictional threshold because he alleges no amount in controversary. Plaintiff also

has not established diversity between the parties. For diversity of citizenship to exist, Plaintiff

cannot be a citizen of the same state as Defendant. In the caption, Plaintiff provides a Missouri

address for himself, but he fails to allege the citizenship of Defendant Moynihan. If Plaintiff and

Defendant are citizens of the same state, the Court does not have subject matter jurisdiction

under 28 U.S.C. § 1332.

As to federal question jurisdiction, Plaintiff does not name any statute or a provision of

the Constitution that he believes Defendant Moynihan violated in relation to the claims in his

complaint. Although Plaintiff states in a conclusory manner that he believes Bank of America

denied his loan applications due to racial discrimination, Bank of America has not been named as

a defendant in this action. Plaintiff also does not allege that Defendant Moynihan acted against

him with discriminatory intent or was in any way involved with the loan application process.

Federal question jurisdiction gives district courts original jurisdiction of civil actions

“arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

Federal question jurisdiction is proper where a plaintiff asserts “[a] non-frivolous claim of a right

or remedy under a federal statute.” Northwest South Dakota Prod. Credit Ass’n, 784 F.2d at

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

jurisdiction is appropriate.” Biscanin, 407 F.3d at 907. Here, Plaintiff cites no specific federal

statute or provision of the United States Constitution implicated by Defendant Moynihan’s

purported actions against Plaintiff.

D. Order to Show Cause

As noted above, Plaintiff has the burden of establishing the Court’s subject matter

jurisdiction. Plaintiff has not provided a jurisdictional amount, has not clearly alleged diversity

of citizenship, and has not pointed to any federal statute or constitutional provision as the basis

for his lawsuit. Plaintiff is therefore ordered to show cause as to why this action should not be

dismissed for lack of jurisdiction. Plaintiff has twenty-one (21) days from the date of this Order

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.

II. Motion to Appoint Counsel

Plaintiff also asks the Court to appoint him counsel. Doc. [3]. In civil cases, a pro se

litigant has no constitutional or statutory right to appointed counsel. See Ward v. Smith, 721 F.3d

940, 942 (8th Cir. 2013); Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). A district court

may appoint counsel 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) (quoting Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir. 1986)). When

determining whether to appoint counsel for an indigent litigant, a court considers criteria such as

“the factual complexity of the issues, the ability of the indigent person to investigate the facts,

the existence of conflicting testimony, the ability of the indigent person to present the claims,

and the complexity of the legal arguments.” Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th

Cir. 2006).

Upon review of those criteria, the Court concludes that appointment of counsel is not

warranted at this time. Plaintiff has not yet adequately alleged the Court’s subject matter

jurisdiction, and he must show cause why this action should not be dismissed. At this stage,

neither the factual nor the legal issues in this case appear to be especially complex. The Court

will entertain future motions for appointment of counsel as the case progresses, as appropriate.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to Proceed in forma

pauperis, Doc. [2], is GRANTED.

IT IS FURTHER ORDERED that Plaintiff's Motion for Appointment of Counsel, Doc.

[3], is DENIED.

IT IS FURTHER ORDERED that Plaintiff must SHOW CAUSE in writing within

twenty-one (21) days of the date of this Order why this action should not be dismissed for lack

of subject matter jurisdiction.

IT IS FINALLY ORDERED that if Plaintiff fails to submit a show cause response in

writing and within twenty-one (21) days of the date of this Order, this action will be dismissed

without prejudice and without further notice.

Dated this 13™ day of June, 2023.

SARAH E. PITLYK

UNITED STATES DISTRICT JUDGE