United States District Court, N.D. Texas, Fort Worth Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE.
Order dated June 28, 2019, United States District Judge Reed
O'Connor referred this case to the undersigned for
pretrial management. ECF No. 7. Before the Court is
Plaintiff's Complaint, ECF No. 1, filed January 17, 2019.
It appears to the Court that the Plaintiff has failed to
allege any facts that would permit the Court to exercise
subject-matter jurisdiction over the case. By Order dated
July 9, 2019, the Court noted that it appeared that it lacked
subject-matter jurisdiction. ECF No. 8. The Court ordered the
Plaintiff to file a response on or before August 9, 2019
containing a written statement of his position concerning the
Court's Show Cause Order, complete with citations of
authorities on which Plaintiff relied and enough facts to
establish that this Court has subject-matter jurisdiction
over this case. Plaintiff failed to respond to the
Court's Order. After considering the pleadings and
applicable legal authorities, the undersigned
RECOMMENDS that Judge O'Connor
DISMISS this case without
prejudice for lack of subject-matter jurisdiction.
Plaintiff is proceeding in forma pauperis, his
complaint is subject to sua sponte dismissal if it
is “frivolous, malicious, or fails to state a claim on
which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(i), (ii). A complaint is frivolous if it
“lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989); Brewster v. Dretke, 587 F.3d 764, 767 (5th
Cir. 2009). A complaint lacks an arguable basis in law when
it is “based on an indisputably meritless legal
theory.” Neitzke, 490 U.S. at 326-27;
Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
And to state a claim upon which relief may be granted, a
complaint must plead “enough facts to state a claim to
relief that is plausible on its face” with enough
specificity “to raise a right to relief above the
speculative level[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). District courts “must presume that
a suit lies outside this limited jurisdiction, and the burden
of establishing federal jurisdiction rests on the party
seeking the federal forum.” Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001). A federal court
has an independent duty, at any level of the proceedings, to
determine whether it properly has subject-matter jurisdiction
over a case. Ruhgras AG v. Marathon Oil Co., 526
U.S. 574, 583 (1999) (“[S]ubject-matter delineations
must be policed by the courts on their own initiative even at
the highest level.”); McDonal v. Abbott Labs.,
408 F.3d 177, 182 n.5 (5th Cir. 2005) (“[A] federal
court may raise subject matter jurisdiction sua
sponte.”). A 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) (citation
federal court has subject-matter jurisdiction over civil
cases “arising under the Constitution, laws, or
treaties of the United States, ” and civil cases in
which the amount in controversy exceeds $75, 000, exclusive
of interest and costs, and diversity of citizenship exists
between the parties. 28 U.S.C. §§ 1331, 1332.
“[S]ubject-matter jurisdiction cannot be created by
waiver or consent.” Howery, 243 F.3d at 919.
Absent jurisdiction conferred by statute or the Constitution,
the federal district court does not have the power to
adjudicate claims and must dismiss an action if
subject-matter jurisdiction is lacking. Id.;
Stockman v. Fed. Election Comm'n, 138 F.3d 144,
151 (5th Cir. 1998) (citing Veldhoen v. United States
Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)).
Plaintiff has not “affirmatively and distinctly”
alleged facts showing how the Court has jurisdiction over the
case. On the face of the complaint, there are no facts to
establish whether the Court has federal-question jurisdiction
under 28 U.S.C. § 1331. Although it appears the parties
are diverse, Plaintiff has not alleged facts to establish the
amount in controversy as required under 28 U.S.C. §
1332. Plaintiff has made a conclusory statement that he was
defrauded over the internet, but he has not alleged facts
that would support the Court's subject-matter
jurisdiction over the case. Because Plaintiff is proceeding
pro se, the Court granted him an opportunity to
address these concerns and explain the basis of the
Court's subject-matter jurisdiction. See ECF No.
8. The Court cautioned Plaintiff that failure to comply with
its Order might result in a recommendation that his case be
dismissed for lack of jurisdiction. Id. Plaintiff
failed to provide an explanation of the jurisdictional basis
of his complaint as ordered by the Court.
the Plaintiff has failed to allege sufficient facts to show
that the Court has subject-matter jurisdiction in this case,
Judge O'Connor should DISMISS the case
of this Findings, Conclusions, and Recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of this Findings, Conclusions,
and Recommendation must file specific written objections
within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b)(1). In
order to be specific, an objection must identify the specific
finding or recommendation to which objection is made, state
the basis for the objection, and specify the place in the
magistrate judge's findings, conclusions, and
recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to
the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings ...