United States District Court, E.D. North Carolina, Western Division
MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge
Tristan Anne Schmier and Jonathan David Schmier allege that
the City of Fayetteville, the City's Public Works
Department, and an individual named David Treo have
overcharged them for various services. After reviewing the
Complaint, the undersigned has determined that the court
lacks subject matter jurisdiction over the Schemers'
claims because there is no diversity of citizenship and the
Complaint does not present a federal question. Thus, the
district court should dismiss their Complaint without
Schmiers allege that from June 2016 until October 2017 the
Commission has overbilled them by more than $1, 000 for
services provided to them. Compl. ¶ 6. In 2016, the
Schmiers noticed that their water bill, which had been about
$20 a month skyrocketed to around $1, 000 a month.
Id. ¶8. The Commission ignored their attempts
to address this issue until they threatened to file a
lawsuit. Id. Once they gained the Commission's
attention, they only relief they received was a test of their
water meter, which showed that the meter was working
properly. Id. 8.
overbilling has continued, with the Schmiers being billed for
about 17, 000 more gallons of water usage per month than the
average Fayetteville household. Id. ¶ 9. The
Schmiers claim that the Commission has refused to investigate
their issue any further. Id. ¶ 10.
are also issues with their electric bill. The Schmiers claim
that although the Commission's website says that
consumers should be charged $15 per month as a Basic
Facilities Charge, they are being charged $19. Id.
¶ 12. They also object to the fact that billing
statements the Commission sends does not show how much
consumers are charged per kilowatt hour.
Commission has, according to the Schmiers, thwarted their
attempts to learn more about these charges. For example, when
they met with a Commission employee to discuss their issues,
they were shown confusing spreadsheets. Id. ¶
claim that they have made several payments to the Commission,
but the Commission has not applied the payments to their
outstanding balance. Id. ¶¶ 11, 14.
Instead, a member of the Commission's legal staff
contacted the Schmiers and tried to strong arm them into
paying the outstanding bills by threatening to turn off their
utilities. Id. ¶ 16.
Schmiers seek an injunction to prohibit the Commission from
cutting off their utilities and compensatory damages.
the court is Plaintiffs' Motion for Leave to Proceed in
forma pauperis. D.E. 1. Along with the Applications,
Plaintiffs submitted Proposed Complaint and Summons as well
as a Motion for a Preliminary Injunction. D.E. 1-1, 1-3. 1-4,
1-5, 1-6. On February 8, 2018, the Clerk of Court notified
the Schmiers that their submission contained several
deficiencies, including failure of one Plaintiff to complete
the application to proceed in forma pauperis, both parties
failed to sign the civil cover sheet, and they failed to
submit financial interest disclosure statements and notices
of self-representation. D.E. 2. The Clerk of Court directed
the Schmiers to correct these deficiencies on or before
February 22, 2018, but they did not do so. Given the failure
of one of the Plaintiffs to sign the IFP motion, the variety
of other shortcomings in their initial filings, and the
failure to address these deficiencies after being notified of
them by the court, the undersigned recommends that the
district court deny the IFP motion.
Subject Matter Jurisdiction
the undersigned's determination that the Schmiers'
IFP application should be denied, a review of the Complaint
demonstrates a lack of subject matter jurisdiction. The court
has a duty to ensure that it has subject matter jurisdiction
and must dismiss a case upon learning that it does not.
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
Here, the allegations in the Complaint do not present a
federal question or establish diversity of citizenship. Thus,
the court lacks subject matter jurisdiction over the
Complaint as currently drafted and it is appropriate for the
district court to dismiss this action.
their state counterparts, federal courts have jurisdiction
only over a limited set of cases and controversies. They are
“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 of the
limited nature of federal jurisdiction, there is a
presumption that a federal court lacks jurisdiction unless a
party shows otherwise. Lehigh Min. & Mfg. Co. v.
Kelly,160 U.S. 327, 336 (1895). The burden of
establishing subject matter jurisdiction rests with the
Schmiers because they are the parties invoking the
court's jurisdiction. Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982) (“The burden of proving