United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
the Court is Charmane Smith's Application to Proceed In
Forma Pauperis (Dkt. No. 2) and Financial Affidavit in
Support, along with her Complaint (Dkt. No. 1). The District
Court referred the above-motion to the undersigned Magistrate
Judge for a determination pursuant to 28 U.S.C. § 636(b)
and Rule 1(c) of Appendix C of the Local Court Rules.
APPLICATION TO PROCEED IN FORMA PAUPERIS
reviewing Smith's Application to Proceed In Forma
Pauperis, the Court finds that she is indigent.
Accordingly, the Court HEREBY GRANTS Smith
in forma pauperis status and ORDERS
her Complaint be filed without pre-payment of fees or costs
or giving security therefor pursuant to 28 U.S.C. §
1915(a)(1). This indigent status is granted subject to a
later determination that the action should be dismissed if
the allegation of poverty is untrue or the action is found
frivolous or malicious pursuant to 28 U.S.C. § 1915(e).
Smith is further advised that although she has been granted
leave to proceed in forma pauperis, a Court may, in
its discretion, impose costs of court at the conclusion of
this lawsuit, as in other cases. Moore v. McDonald,
30 F.3d 616, 621 (5th Cir. 1994).
stated below, this Court has conducted a review of the claims
made in Smith's Complaint and is recommending her claims
be dismissed under 28 U.S.C. § 1915(e). Therefore,
service upon the Defendants should be
withheld pending the District Court's review of
the recommendations made in this report. If the District
Court declines to adopt the recommendations, then service
should be issued at that time upon the Defendants.
Smith has been granted leave to proceed in forma
pauperis, the Court is required by standing order to
review her Complaint under §1915(e)(2), which provides
in relevant part that “the court shall dismiss the case
at any time if the court determines that . . . the action or
appeal (I) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2).
complaints are liberally construed in favor of the plaintiff.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The
court must “accept as true factual allegations in the
complaint and all reasonable inferences that can be drawn
therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d
Cir. 1996); see also Watts v. Graves, 720 F.2d 1416,
1419 (5th Cir. 1983). In deciding whether a complaint states
a claim, “[t]he court's task is to determine
whether the plaintiff has stated a legally cognizable claim
that is plausible, not to evaluate the plaintiff's
likelihood of success.” Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010). “A claim has facial plausibility when the
[nonmovant] pleads factual content that allows the court to
draw the reasonable inference that the [movant] is liable for
the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “The plausibility standard is
not akin to a ‘probability requirement,' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. However, the
petitioner's pro se status does not offer him “an
impenetrable shield, for one acting pro se has no license to
harass others, clog the judicial machinery with meritless
litigation, and abuse already overloaded court
dockets.” Farguson v. Mbank Houston N.A., 808
F.2d 358, 359 (5th Cir. 1986).
sues Dell, Inc., alleging federal question and diversity
jurisdiction. She asserts that “I was sold 3 Dell,
Inc., computers that were dysfunctional.” Dkt. No. 1 at
1. She alleges the computers “exhibited frequent
crashes, blue screens of death, no-post issues, disk drive
malfunctions, thermal failures/overheating, and/or
inoperability.” She also alleges a Dell monitor
overheated and caught fire, causing her to suffer a
“minimum burn and electric shock.” Id.
at 1-2. Smith asserts various state law claims for product
defects, breach of contract, tort, and personal injury. She
requests relief in the amount of sixty-six million dollars.
courts are courts of limited jurisdiction and must have
statutory or constitutional power to adjudicate a claim.
Home Builders Ass'n of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). District
courts have original jurisdiction over all civil actions
“arising under the Constitution, laws, or treaties of
the United States, ” or over civil actions that are
between citizens of different states and involve an amount in
controversy in excess of $75, 000.00, exclusive of interest
and costs.” 28 U.S.C. §§ 1331, 1332.
“The federal courts are under an independent obligation
to examine their own jurisdiction.” United States
v. Hays, 515 U.S. 737 (1995).
case, Smith has pled no federal cause of action, so the only
possible basis for jurisdiction is diversity jurisdiction.
Complete diversity exists when an action is between citizens
of different States. 28 U.S.C. § 1332(a)(1). Smith
pleads that she resides in Tennessee, while Dell, Inc., is
incorporated in Delaware. Pursuant to 28 U.S.C. §
1332(a), a corporation “is deemed to be a citizen of
both the state of its incorporation and the state of its
principal place of business.” J.A. Olson Co. v.
City of Winona, Miss., 818 F.2d 401, 404 (5th Cir.
1987). Dell, Inc.'s principal place of business in Round
Rock, Texas, a city near Austin, and located within the
Western District of Texas. See Polaris Innovations Ltd.
v. Dell, Inc., No. SA-16-CV-451-XR, 2016 WL 7077069, at
*1 (W.D. Tex. Dec. 5, 2016). Thus Smith meets her burden of
demonstrating complete diversity between the parties.
Smith must also show an amount in controversy above $75, 000.
The jurisdictional amount required for diversity jurisdiction
pursuant to 28 U.S.C. § 1332 “exceeds the sum or
value of $75, 000.” Smith's damages are based upon
three allegedly defective Dell computers and one defective
monitor. She also alleges she suffered “minimum
burns” because the monitor shocked her. Smith fails to
allege facts that show that the amount in controversy exceeds
$75, 000.00, excluding interest and costs. 28 U.S.C. §
1332(a). Bare allegations of jurisdictional facts have been
held insufficient to invest a federal court with
jurisdiction. St. Paul Reinsurance Co., Ltd. v.
Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). The