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Smith v. Bank of America

United States District Court, W.D. North Carolina, Charlotte Division

April 10, 2019



          Robert J. Conrad, Jr., United States District Judge.

         THIS MATTER is before the Court for initial review of the pro se Complaint, (Doc. No. 1), pursuant to 28 U.S.C. § 1915(e). Plaintiff has also filed an Application to Proceed In Forma Pauperis, (Doc. No. 2), and a Motion for Summary Judgment, (Doc. No. 3).

         I. BACKGROUND

         Plaintiff, who claims to be a citizen of Tennessee, has named Bank of America as the sole Defendant in this action. She asserts the existence of federal question and diversity jurisdiction. Plaintiff states that she is bringing claims of “Product Liability - Negligence - Strict Liability [and] Breach of Warranty.” (Doc. No. 1 at 2). She alleges that she has been “billed for fees that were improperly imposed, that were not owed or due.” (Doc. No. 1 at 2). She seeks $8, 000, 000, costs, fees, and interest.

         In her Motion for Summary Judgment, Plaintiff asks that the Court enter an $8, 000, 000 judgment in her favor because she “ha[s] written, bank records and statements as proof that the bank improperly charged fees and mis-serviced [her] bank account.” (Doc. No. 3 at 1).


         The Court first addresses Plaintiff's Application to Proceed In Forma Pauperis. Plaintiff's affidavit shows that she has monthly income totaling $1, 000 in the form of supplemental security income and food stamps. (Doc. No. 2 at 1). She has no assets. (Id.). Her monthly expenses total $752, including $550 for housing, $12 for food, $30 for clothing, and $100 for “personal care.” (Id. at 2). The Court is satisfied that Plaintiff does not have sufficient funds to pay the filing fee. The Court will, therefore, grant the Application and permit Plaintiff to proceed in forma pauperis.


         Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it 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.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). A complaint is deemed frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

         Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007). The statement of the claim does not require specific facts; instead, it “need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement must assert more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted) (to satisfy Rule 8(a), a plaintiff must “offer more detail … than the bald statement that he has a valid claim of some type against the defendant.”).

         A pro se complaint must be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the pleadings is particularly appropriate where … there is a pro se complaint raising civil rights issues.”). However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in the complaint which set forth a claim that is cognizable under federal law. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).


         Plaintiff's bare references to “Product Liability - Negligence - Strict Liability [and] Breach of Warranty” are insufficient to state a claim under Rule 8(a). The Complaint's sole factual allegations are that Plaintiff has been billed for fees that were improperly imposed. Plaintiff fails to allege what type of fees are involved, why Defendant should be liable, or how any of the legal theories she has cited relate to her factual allegations in any way. The Complaint is insufficient to pass initial review and will be dismissed without prejudice for failure to state a claim upon which relief can be granted.

         Moreover, the Complaint is so deficient that the Court cannot determine whether it has subject matter jurisdiction over this action. The burden of establishing jurisdiction rests with the party seeking to litigate in federal court. See McNutt v. Gen'l Motors Acceptance Corp., 298 U.S. 178, 189 (1936) (“the party who seeks the exercise of jurisdiction in his favor … must allege in his pleadings the facts essential to show jurisdiction”); Dracos v. Hellenic Lines Ltd., 762 F.2d 348, 350 (4th Cir. 1985) (“plaintiffs must affirmatively plead the jurisdiction of the court”). As a general matter, the sum claimed by the plaintiff controls if the claim is apparently made in good faith; it must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283 (1938). Although a pro se complaint is entitled to liberal construction, ...

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