United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
pro se action has been referred to the undersigned
United States magistrate judge for pretrial management under
28 U.S.C. § 636(b) and a standing order of reference
from Senior United States District Judge A. Joe Fish. The
undersigned enters these findings of fact, conclusions of
law, and recommendation that the Court should dismiss this
action without prejudice for lack of subject matter
India Samone Kahclamat bring this action “under Article
III jurisdiction imposed by Congress and the Organic
Constitution, ” Dkt. No. 3 at 1, against entities and
individuals related to the repossession of her automobile,
see generally id.; see also Id. at 2
(noting that “[r]epossession in the State of Texas is
governed by the Texas Business and Commerce Code § 9 and
debt collection purposes Texas Finance Code §
392”). Although Kahclamat paid the $400.00 statutory
filing fee, the Court, under its independent duty to examine
its subject matter jurisdiction, see Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999), issued
an order on February 28, 2018 requiring Kahclamat to file, no
later than March 30, 2018, a written response to show that
the Court has subject matter jurisdiction over her lawsuit,
see Dkt. No. 5. It appears that Kahclamat now has
responded to that order through a filing titled Subject
Matter Jurisdiction Is For Civil Law. See Dkt. No.
its limited jurisdiction, a federal court generally may only
hear a case if it involves a question of federal law or where
diversity of citizenship exists between the parties.
See 28 U.S.C. §§ 1331, 1332. Because
Kahclamat chose to file her lawsuit in federal court, it is
her burden to establish federal jurisdiction. And if she does
not, this lawsuit should be dismissed. See Fed. R.
Civ. P. 12(h)(3) (“If the court determines at any time
that it lacks subject-matter jurisdiction, the court must
dismiss the action.”).
diversity cases, each plaintiff's citizenship must be
diverse from each defendant's citizenship, and the amount
in controversy must exceed $75, 000. See 28 U.S.C.
§§ 1332(a), (b).
question jurisdiction under 28 U.S.C. § 1331
“exists when ‘a well-pleaded complaint
establishes either that federal law creates the cause of
action or that the plaintiff's right to relief
necessarily depends on resolution of a substantial question
of federal law.'” Borden v. Allstate Ins.
Co., 589 F.3d 168, 172 (5th Cir. 2009) (quoting
Franchise Tax Bd. v. Constr. Laborers Vacation
Trust, 463 U.S. 1, 27-28 (1983)). “A federal
question exists ‘if there appears on the face of the
complaint some substantial, disputed question of federal
law.'” In re Hot-Hed Inc., 477 F.3d 320,
323 (5th Cir. 2007) (quoting Carpenter v. Wichita Falls
Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995)).
Court will not assume it has jurisdiction. Rather, “the
basis upon which jurisdiction depends must be alleged
affirmatively and distinctly and cannot be established
argumentatively or by mere inference.” Getty Oil
Corp. v. Ins. Co. of N.A., 841 F.2d 1254, 1259 (5th Cir.
1988) (citing Ill. Cent. Gulf R. Co. v. Pargas,
Inc., 706 F.2d 633, 636 & n.2 (5th Cir. 1983)).
response to the show cause order, Kahclamat cites several
federal criminal statutes, see Dkt. No. 11 at 1
& 9, and appears to allege that the CarMax entity
defendants committed federal crimes, such as larceny and
embezzlement, see, e.g., Id. at 1. But Kahclamat may
“not assert a valid basis for federal question
jurisdiction” by relying “on federal criminal
statutes only, ” Robinson v. Pulaski Tech.
Coll., 698 F. App'x 859 (8th Cir. 2017) (per curiam)
(citations omitted), as she “has no standing to
institute a federal criminal prosecution and no power to
enforce a criminal statute, ” Savannah v. United
States, No. 3:07-cv-2052-O, 2009 WL 1181066, at *2 (N.D.
Tex. Apr. 30, 2009) (citing Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973); United States v.
Batchelder, 442 U.S. 114, 124 (1979)); see also
McKeague v. Matsuura, Civ. No. 08-00571 ACK-KSC, 2009 WL
89112, at *2 (D. Haw. Jan. 12, 2009) (citing “a handful
of federal criminal statutes ... fails to sufficiently
demonstrate that [a plaintiff's] claims arise under
federal law” (citation omitted)).
also cites a provision of the Fair Credit Reporting Act
(“FCRA”), 18 U.S.C. § 1681, see
Dkt. No. 11 at 9, and a provision of the Fair Debt Collection
Practices Act (“FDCPA”), 18 U.S.C. § 1692,
see Dkt. No. 11 at 10 (misidentifying that provision
as “FCRA VIOLATIONS”). But, as the Court warned
Kahclamat in the February 28, 2018 order, “a reference
‘made by plaintiff to federal law does not, by itself,
provide this Court with subject matter
jurisdiction.'” Dkt. No. 5 at 3 (quoting
Borders v. La. Citizens Prop. Ins. Co., Civ. A. No.
07-5399, 2017 WL 3334323, at *2 (E.D. La. Nov. 8, 2007)
(citing, in turn, Till v. Unifirst Fed. Sav. & Loan
Ass'n, 653 F.2d 152, 161-62 (5th Cir. Unit A Aug.
specifically, “[e]stablishing federal question
jurisdiction requires a ‘substantial federal
question.'” Ayika v. Lopez, No.
EP-10-CV-456-KC, 2010 WL 5373877, at *2 (W.D. Tex. Dec. 21,
2010) (quoting Raymon v. Alvord Indep. Sch. Dist.,
639 F.2d 257, 257 (5th Cir. Unit A Mar. 1981)); see,
e.g., Jolly v. Klein, 923 F.Supp. 931, 941 (S.D. Tex.
1996) (“In the absence of diversity of citizenship, it
is essential that a substantial federal question be presented
to support jurisdiction.” (citing Hagans v.
Levine, 415 U.S. 528, 536-37 (1974))). And the mere
mention of federal law or bare assertion of a federal claim
is not sufficient to obtain federal question jurisdiction,
because “federal courts are without power to entertain
claims otherwise within their jurisdiction if they are so
attenuated and unsubstantial as to be absolutely devoid of
merit; wholly insubstantial; obviously frivolous; plainly
unsubstantial; or no longer open to discussion.”
Hagans, 415 U.S. at 536-37 (internal citation and
quotation marks omitted); see Murphy v. Inexco Oil
Co., 611 F.2d 570, 573 (5th Cir. 1980) (“[T]he
assertion that the claim involves [a federal] question must
be more than incantation.”).
alleges no facts to show that she has a substantial claim
under either the FCRA or the FDCPA, and the mere citation to
those statutes fails to show that any claim she asserts
arises under federal law. See, e.g., Kratt v. Burns,
No. 3:08cv464/RV/EMT, 2009 WL 1919699, at *4 (N.D. Fla. July
2, 2009) (“The Kratts' reliance on the [FDCPA] is
also misplaced. This statute ‘provides a remedy for
consumers who have been subjected to abusive, deceptive or
unfair debt collection practices by debt collectors.' The
Kratts do not plead facts in their complaint suggesting that
any Defendant acted as a ‘debt collector' within
the meaning of § 1692, much less subjected them to
abusive, deceptive, or unfair debt collection practices.
Lacking a ‘plausible foundation, ' this ...