Little v. Walmart Claims Services, lnc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

NORTHERN DIVISION

KENTA LITTLE, )

)

Plaintiff, )

)

v. ) No. 2:24-CV-00065 JMB

)

WALMART CLAIMS SERVICES, INC., )

)

Defendant. )

OPINION, MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Kenta Little for leave to

commence this civil action without prepayment of the required filing fee. [ECF No. 3]. Having

reviewed the financial information submitted in support, the Court finds that the motion should be

granted. Additionally, for the reasons discussed below, plaintiff will be directed to show cause

why her complaint should not be dismissed for lack of subject matter jurisdiction.

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 § 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 Kenta Little is a self-represented litigant who brings this civil action against

Walmart Claims Services, Inc. She asserts that this Court has federal question jurisdiction based

on the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301, et seq.1 The basis of the

complaint is plaintiff’s contention that she purchased “an expired product” from Walmart in

1Plaintiff cites to the FDCA at 21 U.S.C. § 342. The FDCA begins at 21 U.S.C. § 301 and goes on for

several sections. The section of the Act which relates to adulterated food is § 342.

Vandalia, Missouri, on June 19, 2024.2 She claims that she then consumed the unidentified

product, and it “[e]xacerbated” her preexisting brain injury and mental health conditions.”3 She

further claims that defendant Walmart Claims Services, Inc., failed to comply with Missouri

Revised Statutes §§ 537.760-537.765,4 “which led to the injuries [plaintiff] continue[s] to suffer

from.” Plaintiff seeks ten million dollars in damages.

Discussion

For the reasons discussed below, plaintiff will be directed to show cause why this case

should not be dismissed for lack of subject matter jurisdiction.

A. 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

2Plaintiff has failed to identify in her complaint the alleged “expired product” she purportedly purchased

and consumed from Walmart.

3Plaintiff does not indicate what her alleged “preexisting brain injury” is.

4Plaintiff seeks relief under Missouri state law statute for strict products liability.

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). Here, plaintiff asserts that this Court

has federal question jurisdiction over her case. However, as discussed below, it does not appear

that either federal question jurisdiction or diversity jurisdiction is present.

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).

Here, plaintiff asserts that her case implicates a federal question because she believes a

cause of action arises under the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301,

et seq. However, she is incorrect in her assertion.

The FDCA provides that “all such proceedings for the enforcement, or to restrain

violations, of this chapter shall be by and in the name of the United States.” 21 U.S.C. § 337(a).

The Supreme Court has opined that this provision “leaves no doubt that it is the Federal

Government rather than private litigants who are authorized to file suit for noncompliance” with

the FDCA. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 349 n.4 (2001). Applying

Buckman, courts have rejected claims to directly enforce the FDCA by private litigants such as

plaintiff. See, e.g., Riley v. Cordis Corp., 525 F. Supp. 2d 769, 776–77 (D. Minn. 2009) (applying

Buckman to a claim stemming from an injury allegedly caused by a medical device regulated under

the FDCA); Young v. PepsiCo, Inc., No. 20-cv-1486 (PAM/KMM), 2020 WL 4572067, at *1 (D.

Minn. Aug. 8, 2020) (dismissing, pursuant to Buckman, plaintiff's claim that PepsiCo violated the

FDCA by “mislabeling” Mountain Dew Voltage as “charged with raspberry citrus flavor” when it

contained no raspberry). As they form part of the FDCA's regulatory regime, the Current Good

Manufacturing Practices cannot be enforced through a private action. See 21 U.S.C. § 342

(describing “adulterated” food); 21 C.F.R. § 110.80 (2023) (prescribing methods to prevent food

from becoming “adulterated” within the meaning of the FDCA).

Given the aforementioned, plaintiff has not presented facts demonstrating that her federal

rights were violated or that she has the ability to pursue such rights though federal law. As such,

plaintiff lacks federal question jurisdiction in this matter.

C. Diversity Jurisdiction

“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). 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).

“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). For purposes of diversity, state citizenship requires an individual’s physical

presence in the state coupled with an indefinite intention to remain there. Blakemore v. Missouri

Pac. R.R. Co., 789 F.2d 616, 618 (8th Cir. 1986).

Here, plaintiff claims that she is a citizen of the State of Missouri. She is suing defendant

Walmart Claims Services, Inc., whom she claims is a corporation incorporated under the laws of

Missouri with its principal place of business in the State of Kentucky. “For almost two centuries

the diversity statute has been interpreted to require ‘complete’ diversity of citizenship,” Howell by

Goerdt v. Tribune Entm't Co., 106 F.3d 215, 218 (7th Cir.1997) (citing Strawbridge v. Curtiss, 7

U.S. 267 (1806)), a crucial prerequisite which every plaintiff seeking diversity jurisdiction has the

burden of alleging and eventually proving, see Hertz Corp. v. Friend, 559 U.S. 77, 96–97 (2010).

The diversity statute's text deems a corporation a citizen of the “State where it has its principal

place of business,” or where it has its “nerve center,” in addition to its state of incorporation. 28

U.S.C. § 1332(c)(1); see also Hertz Corp., 559 U.S. at 96-97.

Because plaintiff alleges that both she and defendant Walmart Services, Inc. are citizens of

the same State, Missouri, she cannot assert that there is diversity of citizenship in this action.5

D. Order to Show Cause

As discussed above, plaintiff has not adequately provided a basis for this Court’s

jurisdiction. If the Court determines at any time that it lacks subject matter jurisdiction, the action

must be dismissed. See Fed. R. Civ. P. 12(h)(3). Therefore, plaintiff will be ordered to show cause

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. Failure to comply with this order will result in the dismissal of this

action without prejudice and without further notice.

E. Motion to Appoint Counsel

Before the Court is plaintiff’s motion for appointment of counsel. 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). See also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998)

5The Court notes that plaintiff also has not properly alleged that the amount in controversy is more than

$75,000, or the statutory amount. Rather, in her complaint she states in a conclusory manner that “because

of medical injuries” due to consuming an unidentified expired product from Walmart, she is entitled to ten

million dollars in damages. The Court finds that plaintiff's conclusory allegations regarding the amount in

controversy fail to satisfy her burden of proving the jurisdictional amount by a preponderance of evidence.

See e.g., Kedrowski v. Lycoming Engines, 2015 WL 2165798, at *4 (D. Minn. May 8, 2015) (holding that

allegations of “severe emotional distress ... including but not limited to substantial fright, extraordinary

stress, anxiety and apprehension culminating in severe damages and pain and suffering ... insufficient to

establish the jurisdictional amount by a preponderance of the evidence”); OnePoint Sols., LLC v. Borchert,

486 F.3d 342, 346 (8th Cir. 2007) (punitive damages can be included but “the existence of the required

amount must be supported by competent proof.”).

(stating that “[a] pro se litigant has no statutory or constitutional right to have counsel appointed

in a civil case”). 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. Plaintiff has demonstrated, at this point, that she can adequately present her

claims to the Court. Additionally, plaintiff is being directed to show cause as to why this case

should not be dismissed for lack of subject matter jurisdiction. 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

[ECF No. 3] is GRANTED.

IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [ECF

No. 2] is DENIED at this time.

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

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

of subject matter jurisdiction.

IT IS FURTHER ORDERED that failure to comply with this order will result in the

dismissal of this case without prejudice and without further notice.

Dated this 25" day of September, 2024.

HENRY EDWARD a

UNITED STATES DISTRICT JUDGE