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Brissett v. Wells Fargo Bank, N.A.

United States District Court, E.D. North Carolina, Eastern Division

December 13, 2017

WELLS FARGO BANK, N.A., As Trustee for the Certificate Holders of Carrington Mortgage Loan Trust, Series 2007-Frel, Defendant.



         This 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.[1] 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.


         Plaintiffs 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.

         In 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).[2]


         A. Standard of Review

         The 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 relief.

         A 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., Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

         B. Analysis

         Plaintiffs object to the determination in the M&R that plaintiffs fail to allege diversity jurisdiction.[3] “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.”).

         “[T]he 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 ...

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