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Hinson-Gribble v. Demayo

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

February 13, 2019

QUANCIDINE HINSON-GRIBBLE, Plaintiff,
v.
LAW OFFICES OF MICHAEL A. DEMAYO and MICHAEL A. DEMAYO, Defendants.

          ORDER AND MEMORANDUM & RECOMMENDATION

          JAMES E. GATES UNITED STATES MAGISTRATE JUDGE.

         This pro se case is before the court on the motion to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) (D.E. 1) by plaintiff Quancidine Hinson-Gribble ("plaintiff') and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), respectively. See D.E. dated 30 Jan. 2019. As set out below, the motion to proceed in forma pauperis will be allowed, and it will be recommended that plaintiff's claims be dismissed for lack of subject matter jurisdiction.

         ORDER ON IN FORMA PAUPERIS MOTION

         The court finds that plaintiff has adequately demonstrated her inability to prepay the required court costs. Her motion to proceed in forma pauperis is therefore ALLOWED.

         MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW

         I. BACKGROUND

         Plaintiff commenced this action on 11 January 2019. Her proposed complaint (D.E. 1-1) is on a preprinted complaint form, to which are attached a "Statement of the Case" ("Statement") (D.E. 1-2) and ten exhibits (D.E. 1-3 to 1-12).

         Plaintiff alleges misconduct by defendants attorney Michael A. DeMayo ("DeMayo") and the Law Offices of Michael A. DeMayo ("DeMayo Law") (collectively "defendants") arising from DeMayo's representation of plaintiff with respect to a car accident on 20 January 2016. Compl. § III at p. 4; Stmt. 1-2. Specifically, plaintiff contends that DeMayo promised to file a lawsuit on plaintiffs behalf and never did, breaching a contract between them. Compl. § III at pp. 4-5; Stmt. 1-2. As a result, plaintiff had to negotiate a settlement on her own. Id. Plaintiff asserts claims against both defendants for breach of contract and fraudulent misrepresentation. Compl. §§ II.C, III at p. 5; Stmt. 2.

         The complaint form plaintiff used is entitled as one for cases based on diversity jurisdiction.[1] Compl. 1 ("COMPLAINT FOR A CIVIL CASE ALLEGING BREACH OF CONTRACT (28 U.S.C. § 1332; Diversity of Citizenship)"); see also Id. § II (explaining diversity jurisdiction). She alleges that she and DeMayo are citizens of North Carolina, id. § II.A.1, B.1, and that DeMayo Law is incorporated under the laws of the state of North Carolina and has a principal place of business in North Carolina, id. § II.B.2. She seeks $3 million in damages. Id. § II.C.

         II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW

         After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). The court must dismiss the complaint if it determines that the action is frivolous or malicious, 28 U.S.C. § 1915(e)(2)(B)(i); fails to state a claim upon which relief can be granted, id. § 1915(e)(2)(B)(ii); or seeks monetary relief from an immune defendant, id. § 1915(e)(2)(B)(ii). 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness).

         Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain "a short and plain statement of the grounds for the court's jurisdiction... [and] a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the complaint must '"state[ ] a plausible claim for relief that 'permit[s] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.'" Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).

         In evaluating frivolity specifically, a pro se plaintiffs pleadings are held to "less stringent standards" than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiffs contentions as true. Denton, 504 U.S. at 32. Instead, the court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Provided that a plaintiffs claims are not clearly baseless, the court must weigh the factual allegations in plaintiffs favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.

         A court may consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that "[determining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure"); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. 8 Jan. 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). "Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress." Bowman v. White,388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here plaintiff. Adams v. Bain,697 F.2d 1213, 1219 (4th Cir. 1982) ("The burden of proving subject matter jurisdiction ... is on the plaintiff, the party asserting jurisdiction."). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If in a frivolity review the court ...


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