United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter comes before the court on frivolity review of
plaintiffs' pro se complaint, pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Pursuant to 28 U.S.C. §
636(b)(1)(B) and Federal Rule of Civil Procedure 72(b),
United States Magistrate Judge Robert B. Jones, Jr., entered
a memorandum and recommendation (“M&R”),
wherein it is recommended that the court dismiss
plaintiffs' complaint for lack of subject matter
jurisdiction. Plaintiffs timely filed objections to the
M&R. In this posture, the issues raised are ripe for
ruling. For the reasons stated herein, the court adopts the
M&R, and dismisses the complaint for lack of
jurisdiction, without prejudice and with leave to amend.
filed motion for leave to proceed in forma pauperis on August
17, 2017, accompanied by proposed complaint, supplemental
complaint, and supporting documentation, asserting defendant
engaged in fraud and deceptive trade practices in the course
of a purported loan modification arrangement, following
hurricane damage in 2012, and foreclosure action taking place
in June 2017, against “the primary residence of
Plaintiffs” at 609 National Court Drive, New Bern,
North Carolina, 28560. Plaintiffs seek an unspecified amount
of treble damages, punitive damages, and lis pendens.
order and M&R entered October 6, 2017, the magistrate
judge granted plaintiffs' applications to proceed in
forma pauperis, and the court filed plaintiffs'
complaint. Upon frivolity review, the M&R recommends
dismissal of plaintiffs' complaint for lack of subject
matter jurisdiction. In particular, the M&R determines
that no federal question jurisdiction is apparent from the
face of the complaint. In addition, the M&R determines
that plaintiffs have not alleged diversity of the parties nor
amount in controversy sufficient to satisfy the court's
diversity jurisdiction. Plaintiffs filed objections on
October 20, 2017, asserting that they “have not resided
in the State of North Carolina for over (4) four
years.” (Obj. (DE 9) at 1).
Standard of Review
district court reviews de novo those portions of a magistrate
judge's M&R to which specific objections are filed.
28 U.S.C. § 636(b). The court does not perform a de novo
review where a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Absent a specific and timely filed
objection, the court reviews only for “clear error,
” and need not give any explanation for adopting the
M&R. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v.
Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful
review of the record, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
636(b)(1). Under 28 U.S.C. § 1915(e)(2), the court may
dismiss an action that is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
complaint may be found frivolous if it “lacks an
arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). Additionally, a
complaint fails to state a claim if it does not
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face,
” sufficient to “allow[ ] the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). In evaluating
whether a claim has been stated, “[the] court accepts
all well-pled facts as true and construes those facts in the
light most favorable to the plaintiff, ” but does not
consider “legal conclusions, elements of a cause of
action, . . . bare assertions devoid of further factual
enhancement [, ] . . . unwarranted inferences, unreasonable
conclusions, or arguments.” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir. 2009) (citations omitted).
object to the determination in the M&R that plaintiffs
fail to allege diversity jurisdiction. “The
district courts . . . have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, . . . and is between . . . citizens of
different States.” 28 U.S.C. § 1332. “There
is a presumption against diversity jurisdiction.”
Krier-Hawthorne v. Beam, 728 F.2d 658, 667
(4th Cir. 1984). “[T]he party who seeks the exercise of
jurisdiction in his favor . . . must allege in his pleading
the facts essential to show jurisdiction.” McNutt
v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S.
178, 189 (1936); see Bowman v. White, 388 F.2d 756,
760 (4th Cir. 1968) (“[T]he complaint must state on its
face the grounds for its jurisdiction.”).
citizenship of the parties at the time of commencement of the
action determines whether the requisite diversity
exists.” Rowland v. Patterson, 882 F.2d 97, 98
(4th Cir. 1989). “[I]f the person established
citizenship in another State after the complaint was filed,
it would not affect jurisdiction that existed at the time the
complaint . . . was filed.” Johnson v. Advance
Am., 549 F.3d 932, 938 (4th Cir. 2008).
For purposes of diversity jurisdiction, residency is not
sufficient to establish citizenship. To be a citizen of a
State, a person must be both a citizen of the United States
and a domiciliary of that State. Domicile requires physical
presence, coupled with an intent to make the State a home.
[T]o effect a change of citizenship from one state to another
there must ...