United States District Court, W.D. Pennsylvania
ALVIN R. SIMMONS, JR., Plaintiff,
META BANK & ACE, Defendants.
Barry Fischer Senior U.S. District Judge.
NOW, this 23rd day of October, 2019, upon consideration of
pro se Plaintiff Alvin R. Simmons' Amended
Motion for Leave to Proceed in forma pauperis, (Docket No.
), IT IS HEREBY ORDERED that said Motion  is GRANTED as
to the In Forma Pauperis Status of pro se Plaintiff Alvin R.
Simmons, Jr. ONLY, as the amended motion sufficiently alleges
that he did not receive his $771 SSI benefits check for
September 2019 and thereby demonstrated that he lacks the
present ability to pay the filing fee.
FURTHER ORDERED that the above captioned matter is dismissed,
without prejudice, for lack of subject matter jurisdiction.
to 28 U.S.C. § 1915(e), the Court is under an obligation
to evaluate the allegations in the Complaint prior to
ordering service of same, in order to determine if the Court
has subject matter jurisdiction. See 28 U.S.C.
§ 1915(e); see also Johnson v. Philadelphia Housing
Authority, 448 Fed.Appx. 190, 192 (3d Cir. 2011). The
United States Court of Appeals for the Third Circuit has
recognized that “[f]ederal courts are courts of limited
jurisdiction.” Zambelli Fireworks Mfg. Co., Inc. v.
Wood, 592 F.3d 412 (3d Cir. 2010). To this end, this
Court can only exercise subject matter jurisdiction over
“civil actions arising under the Constitution, laws, or
treaties of the United States, ” 28 U.S.C. § 1331,
or civil actions wherein there is diversity of citizenship
between the parties and the matter in controversy exceeds
$75, 000.00, 28 U.S.C. § 1332. “The burden is on
the plaintiff to establish the existence of federal
jurisdiction.” McCracken v. ConocoPhillips
Co., 335 F.App'x. 161, 162-163, 2009 WL 1911764, 1
(3d Cir. 2009) (citing Packard v. Provident Nat'l
Bank, 994 F.2d 1039, 1045 (3d Cir. 1993)).
Court's estimation, Plaintiff's Complaint fails to
establish the existence of federal jurisdiction and this
Court is required to dismiss his Complaint, without
prejudice. 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.”). To
this end, Plaintiff has checked the box that this Court has
federal question jurisdiction in the “Basis of
Jurisdiction” portion of the Complaint and checked the
box indicating that this is an “other civil rights
case” on the civil cover sheet. (Docket Nos. 1-1; 1-2).
Liberally construing the allegations in Plaintiff's
Complaint, it is apparent that he has not properly invoked
this Court's federal question jurisdiction nor stated a
viable federal claim against Meta Bank & Ace, which is
not a state actor subject to suit under § 1983 and he
has otherwise not identified any federal statute upon which
his claims rely. Leshko v. Servis, 423 F.3d 337, 339
(3d Cir. 2005) (“to state a claim of liability under
§ 1983, [a plaintiff] must allege that [she] was
deprived of a federal constitutional or statutory right by a
state actor.”). Indeed, Simmons' Complaint reveals
that he is asserting breach of contract and/or fraud claims
against Meta Bank & Ace, based on his allegations that
the bank committed a theft of his September 2019 SSI benefits
check. (Docket No. 1-1). While Plaintiff sufficiently pleads
that the parties are diverse based upon his assertions that
he is a citizen of Pennsylvania and Meta Bank & Ace is a
citizen of South Dakota, he has not sufficiently alleged that
the amount in controversy exceeds the statutory threshold of
$75, 000. (See Docket No. 1-1). As the Court of
Appeals has held:
“[t]he party asserting jurisdiction bears the burden of
showing that at all stages of the litigation the case is
properly before the federal court.” Samuel-Bassett
v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir.
2004). “[E]stimations of the amounts recoverable must
be realistic. The inquiry should be objective and not based
on fanciful, ‘pie-in-the-sky,' or simply wishful
amounts, because otherwise the policy to limit diversity
jurisdiction will be frustrated.” Id. at 403.
Emrit v. Indep. Music Awards, IMA, 605 Fed.Appx.
103, 104 (3d Cir. 2015). Here, Plaintiff's conclusory
statements that he seeks to be paid over $75, 000 due to Meta
Bank & Ace's alleged theft of his $771 SSI benefits
check for September 2019 are “not supported by any
legally cognizable calculation of damages.”
Id. at 104. Therefore, Plaintiff has failed to
sufficiently plead that this Court may assert diversity
jurisdiction over this case. See 28 U.S.C. §
these reasons, Plaintiff has not met his burden to establish
that this Court has subject matter jurisdiction over his
case. The Court further finds that, for the same reasons,
leave to amend is not necessary as any amendment to this
Complaint would be futile. Therefore, Plaintiff's
Complaint is hereby DISMISSED, without prejudice, for lack of
subject matter jurisdiction. See Fed. R. Civ. P.
12(h)(3) (“If ...