Opinion
C/A 4:24-00761-JD-TER
02-28-2024
Travis McCrea, Plaintiff, v. Michael Santomassimo, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a pro se litigant who paid the filing fee. Pursuant to 28 U.S.C. § 636(b)(1), and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999).
The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.). Moreover, even when the filing fee is paid, the court possesses the inherent authority to ensure that a plaintiff has standing, that federal jurisdiction exists, and that a case is not frivolous. Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012)(per curiam).
DISCUSSION
Plaintiff's action is subject to summary dismissal because the court lacks subject matter jurisdiction and Plaintiff's bare citation to federal statutes in Plaintiff's attempt to garner federal question subject matter jurisdiction is frivolous as discussed below. Plaintiff only alleges:
1.) Defendant; failure to comply with instruction to tender payment by indorsement.
2.) Defendant; withheld forms of payment and repayment schedule over deadlines
3.) Defendant; Committed Security fraud
4.) Defendant; Fraudulently Created an identity theft alert to close me out of my account.
5.) Defendant; decision caused plaintiff to loss expense car insurance, light outages, late fees and penalties on other accounts.
6.) Defendant; Wrongfully, Knowingly Committed Criminal Behavior.(ECF No. 1 at 4)(errors in original).
In 2023, Plaintiff sent Defendant letters with the same language but with different titles on each letter. The language in the letters appears to arise out of redemptionist theories/sovereign citizen adherents. The language of each letter was: Plaintiff on behalf of Plaintiff “hereby accepts all titles, rights, interest, and equity owed”... I instruct Defendant “to apply the principal's balance to the principal's accounts each and every billing cycle” and for Defendant to write back within five days if you cannot complete instructions, otherwise it is assumed you did the instructions. (ECF No. 1-1). The December 12, 2023 letter was titled “Notice of Acceptance” and further down “Credit Claim.” (ECF No. 1-1 at 1). The December 22, 2023 letter was titled “Noting for Non-Acceptance” and further down “Opportunity to Cure” but stated the same exact language in body as the other letters. The January 8, 2023 letter to Defendant contained the same exact body language but was titled “Non-Acceptance” and further down “Default of Judgment.” (ECF No. 1-1 at 4). Then, on January 23, 2024, Plaintiff sent Defendant a “Breach of Contract Notice” stating that failure to comply with payment deadlines resulted in breach of contract and requested settlement from Defendant. (ECF No. 1-1 at 5). It appears by the attachments, not by allegations from the Plaintiff, that Wells Fargo, Defendant's employer, then terminated the deposit banking relationship with Plaintiff and mailed Plaintiff a cashier's check for the account balance (ECF No. 1-1 at 7). Also attached is a denial of a credit card application with several listed denial reasons and then information of right to request a credit report from a credit reporting agency and dispute any information in the report from the reporting agency. (ECF No. 1-1 at 9). Plaintiff makes no allegations in the Complaint regarding a lack of a credit card.
An action by a different plaintiff against the same Defendant as in this action involved similar “made up” documents by that plaintiff. Johnson v. Santomassimo, 2021 WL 2155052, at *7 (D. Md. May 27, 2021), aff'd, 2021 WL 5412252 (4th Cir. Nov. 19, 2021)(internal citations and quotations omitted)(collecting cases of frivolous attempts at using nonsensical documents). The Maryland court noted the “documents are nothing more than words strung together on a piece of paper which lack any cohesive meaning and convey nothing.” Id.
Redemptionist and sovereign citizen theories have been recognized by the courts as frivolous and a waste of court resources. Estrada Tr. v. All Assets Held in 57995-019 / Ismael Estrada, No. 4:19-cv-2968-MGL-TER, 2019 WL 6330745, at *2 (D.S.C. Oct. 25, 2019), report and recommendation adopted sub nom., 2019 WL 6320153 (D.S.C. Nov. 26, 2019)(collecting cases).
Federal courts are courts of limited subject matter jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Because federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir.1999), citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337, 327 (1895). Federal courts have an “independent obligation” to investigate the limits of its subject-matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). As such, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also Fed.R.Civ.P. 12(h)(3). A plaintiff must allege in his pleading the facts essential to show jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182 (1936). To this end, Federal Rule of Civil Procedure 8(a)(1) requires that the complaint provide “a short and plain statement of the grounds for the court's jurisdiction.” If, however, the complaint does not contain “an affirmative pleading of a jurisdictional basis, the federal court may find that it has jurisdiction if the facts supporting jurisdiction have been clearly pleaded.” Pinkley, Inc., 191 F.3d at 399 (citing 2 Moore's Federal Practice § 8.03[3] (3d ed.1997).
District courts exercise two types of subject matter jurisdiction: federal question jurisdiction pursuant to 28 U.S.C. § 1331 and diversity jurisdiction pursuant to 28 U.S.C. § 1332.
The diversity statute requires complete diversity of parties and an amount in controversy in excess of seventy-five thousand dollars ($75,000.00). 28 U.S.C. § 1332(a). Complete diversity of parties in a case means that no party on one side may be a citizen of the same State as any party on the other side. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978).
Plaintiff alleges Defendant has a California address. (ECF No. 1 at 2). Important here, Plaintiff does not allege an amount in controversy or citizenship of parties, as Plaintiff's allegations of jurisdiction are under federal question jurisdiction. Plaintiff seeks two million dollars, a FICO credit score of 800, and one million “account back open with a credit line.” (ECF No. 1 at 4). “The demand for relief upon which the amount in controversy is based must be made in good faith and it must appear reasonably possible that the complainant may recover an amount in excess of the jurisdictional minimum.” Thompson v. Brown, No. 7:19-CV-02504-TMC-JDA, 2019 WL 6255829, at *4 (D.S.C. Oct. 3, 2019), report and recommendation adopted, 2019 WL 6255134 (D.S.C. Nov. 22, 2019). The amount of damages here totaling three million dollars is not plausibly alleged and Plaintiff's factual allegations are unsupportive of damages meeting the $75,000 amount in controversy requirement.
Plaintiff has only pleaded federal question jurisdiction allegations. (ECF No. 1 at 3-4). With no further information than the six numbered allegations discussed above(ECF No. 1 at 4), Plaintiff cites as the federal question jurisdictional basis: “Bills of Exchange Act 1931, Banking Act 1933, Cestui Que Vi Act 1666, Nogitiable Instrument Act 1881, Federal Reserve section 16 (1-5) Notes, Federal Reserve section 29 Civil Money Penalty, TILA, 15 US C 1611 Criminal Liability for Willful and Knowing Violations, 15 USC 1601 finding and declaration of purpose, 28 USC 3002 Judgement, 12 USC 411 banks nature of obligation, 15 USC 1605 Determination of finance charge, 18 USC 1348 Security and Commodities, Federal Reserve Act 22 Offenses of examiners, member bank officers, and directors.” (ECF No. 1 at 3)(errors in original). As demonstrated below, Plaintiff has failed to garner federal question subject matter jurisdiction by his cursory allegations of statutes.
As to the Bills of Exchange Act 1931, there is no federal question jurisdiction under this law. Wilson v. Aqua Fin., No. 3:23-cv5348-SAL-SVH, 2023 WL 7924150, at *4 (D.S.C. Oct. 26, 2023). As to the Banking Act 1933, there is no federal question jurisdiction under this law. Wilson v. Aqua Fin., No. CV 3:23-5348-SAL-SVH, 2023 WL 7924150, at *4 (D.S.C. Oct. 26, 2023)(citing Mallory v. Obama, 2015 WL 7722034, at *2 (W.D. Mich. Nov. 30, 2015)(rejecting as frivolous sovereign-citizen claims under the Emergency Banking Relief Act of 1933)). As to Cestui Que Vi Act 1666, there is no federal question jurisdiction under this law. Wilson v. Aqua Fin., 2023 WL 7924150, at *4 (D.S.C. Oct. 26, 2023).
As to the Negotiable Instrument Act 1881, there is no federal question jurisdiction under this law. Williams v. Skelly, 2018 WL 2337310, at *2 (W.D. Ky. May 23, 2018)(finding citation to this Act was a form of a frivolous sovereign citizen claim to always be dismissed without any extended argument). As to “Federal Reserve section 16 (1-5) Notes,” there is no federal question jurisdiction under this law. Morton v. Wells Fargo Home Mortg., No. 6:23-CV-04568-BHH-JDA, 2023 WL 8768432, at *5 (D.S.C. Nov. 21, 2023), report and recommendation adopted, 2024 WL 397144 (D.S.C. Feb. 1, 2024)(“Section 16 of the Federal Reserve Act does not provide a basis for federal question jurisdiction.”)
As to Federal Reserve section 29 Civil Money Penalty, there is no federal question jurisdiction under this law. Morton v. Wells Fargo Home Mortg., 2023 WL 8768432, at *5 (D.S.C. Nov. 21, 2023), report and recommendation adopted, 2024 WL 397144 (D.S.C. Feb. 1, 2024)(“the imposition of civil penalties under Section 29 is carried out by federal officials, and private individuals do not have a private right of action to enforce Section 29 of the Federal Reserve Act... the Federal Reserve Act does not provide a private right of action and thus cannot confer federal question jurisdiction”).
As to Plaintiff's general citation to TILA, Plaintiff makes no allegations to support jurisdiction under the Truth in Lending Act. Plaintiff does not allege Wells Fargo via its CFO Defendant Santomassimo made him a loan and the attachments to the Complaint do not support an inference of a loan. TILA requires disclosures of loan amount, APR, finance charges, prepayment penalties, payment schedule, and total amount you will pay on a loan. As to 15 U.S.C. § 1611, there is no private right of action under this statute. Parker v. Reg'l Acceptance Corp., No. 6:21-CV-1724-TMC, 2021 WL 4137527, at *3 (D.S.C. Sept. 10, 2021)(finding a claim frivolous seeking to recover money under this statute). As to 15 U.S.C. § 1601, this is the statute citation for TILA; as discussed above, Plaintiff has not alleged jurisdictional facts supporting a claim under TILA.
As to 28 U.S.C. § 3002, this statute merely defines various terms and does not provide a federal cause of action. See Jenkins v. Fargo, No. 2:21-cv-01182-BHH-MHC, 2021 WL 3293653, at *3 (D.S.C. June 23, 2021), report and recommendation adopted sub nom., 2021 WL 3293619 (D.S.C. Aug. 2, 2021). As to 12 U.S.C. § 411, this is the codification of part of Section 16 of the Federal Reserve Act already discussed above. As to 15 U.S.C. § 1605, this is codification of part of TILA already discussed above.
As to 18 U.S.C. § 1348, “§ 1348 is a criminal securities and commodities fraud statute and does not create a private right of action.” CPI Amherst SFR v. Alexander, 2023 WL 2620913, at *4 (E.D. N.C. Feb. 27, 2023), report and recommendation adopted, 2023 WL 2614540 (E.D. N.C. Mar. 22, 2023). As to “Federal Reserve Act 22 Offenses of examiners, member bank officers, and directors,” this is codified in part at 12 U.S.C. § 503; this statute provides individual liability for directors of officers of a bank who knowingly violate 12 U.S.C. §§ 375, 374a, 375b, or 376 or 18 U.S.C. §§ 217, 218, 219, 220, 655, 1005, 1014, 1906, 1909. Plaintiff has not alleged jurisdictional facts to support a claim garnering federal question jurisdiction under these statutes.
District Courts “have no obligation to act as counsel or paralegal” to pro se litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004). District Courts are also not “required to create” a pro se litigant's claim for him.
This court does not have federal question subject matter jurisdiction or diversity jurisdiction over Plaintiff's action based on the allegations presented in Plaintiff's Complaint.
Other opinions in this court have found an action is frivolous when it contains brief unexplained invocations of federal question jurisdiction by the same statute citations that the Plaintiff here uses. Wilson v. Dominion Energy, No. 3:23-cv-4973-SAL-SVH, 2023 WL 7923926, at *5 (D.S.C. Oct. 25, 2023); Wilson v. Veterans United Home Loans, No.3:23-cv-5020-SAL-SVH, 2023 WL 7923862, at *5 (D.S.C. Oct. 25, 2023); Wilson v. City of Cayce, No. 3:23-cv-5021-SAL-SVH, 2023 WL 7924163, at *5 (D.S.C. Oct. 26, 2023). Plaintiff's action is also subject to summary dismissal as it is frivolous. A complaint is deemed frivolous when it is “clearly baseless” and includes allegations that are “fanciful,” “fantastic,” or “delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). In reviewing for frivolousness, the court looks to see whether the complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions. Harley v. United States, 349 F.Supp.2d 980, 981 (M.D. N.C. 2004); see Neitzke v. Williams, 490 U.S. 319, 325, (1989)(“A suit is frivolous if it lacks an arguable basis in law or fact.”); Feurtado v. McNair, No. 3:05-cv-1933-SB, 2006 WL 1663792, at *2 (D.S.C. Jun. 15, 2006) (noting that frivolousness encompasses inarguable legal conclusions and fanciful factual allegations), aff'd, 227 Fed.Appx. 303 (4th Cir. 2007). Plaintiff's action is subject to summary dismissal for frivolity and for lack of subject matter jurisdiction based on the inherent authority of this court.
RECOMMENDATION
Accordingly, it is recommended that the District Court dismiss this action without prejudice and without issuance and service of process.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).