United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge.
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).
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
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).
TO PROCEED IN FORMA PAUPERIS
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.
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
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.”).
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).
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.
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, ...