United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
matter is before the court on memorandum and recommendation
(“M&R”) of Magistrate Judge Robert B. Jones
pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P.
72(b), wherein it is recommended that the court dismiss
plaintiff's complaint on frivolity review under 28 U.S.C.
§ 1915(e)(2)(B). Plaintiff objected to the M&R, (DE
13), and in this posture, the issues raised are ripe for
ruling. For the reasons stated herein, the court adopts the
M&R as its own and dismisses the complaint as frivolous.
August 29, 2016, plaintiffs filed complaint asserting claims
against defendants for breach of contract, fraud, and
negligent misrepresentation. Thereafter, plaintiffs filed
separate motions to proceed in forma pauperis. (DE 3, 6). On
October 6, 2017, the magistrate judge issued the M&R,
recommending that the court dismiss plaintiffs' claims
for lack of subject matter jurisdiction. Plaintiffs timely
filed objection on January 8, 2018. (DE 13). Therein,
plaintiffs contend that the court has subject matter
jurisdiction where the amount in controversy exceeds $75, 000
and the parties are from different states.
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).
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.”).
complaint does not contain allegations sufficient to show
diversity jurisdiction. With respect to amount in
controversy, plaintiffs make no allegation in their complaint
that the amount in controversy in this action exceeds $75,
000. Rather, plaintiffs' complaint only asserts
entitlement to compensatory damages “for all damages
sustained.” See 28 U.S.C. § 1332.
complaint also fails to contain allegations sufficient to
establish complete diversity of citizenship amongst the
parties. Significantly, plaintiffs fail to allege the
citizenship of the individual defendants. See Elliot v.
Am. States Ins. Co., 883 F.3d 384, (4th Cir. 2018)
(“When original jurisdiction is based on diversity of
citizenship, the cause of action must be between parties of
completely diverse state citizenship, that is, no plaintiff
may be a citizen of the same state as any
their objection to the M&R, plaintiffs assert entitlement
to $300, 000. Plaintiffs also assert generally that
“the [p]arties in the case are from [d]ifferent
states[.]” (DE 13, p. 1). Plaintiffs' conclusory
allegation regarding the parties' citizenship is
insufficient to support exercise of the court's diversity
jurisdiction under 28 U.S.C. § 1332. Nemet, 591
F.3d at 255 (indicating that the court need not accept.).
Where the court lacks subject matter jurisdiction to hear
plaintiffs' claims, the case must be dismissed.
careful review of the M&R and the record generally,
finding no error in this determination, the court ADOPTS the
findings and recommendations of the magistrate judge. This
action is DISMISSED pursuant to 28 U.S.C. ...