United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. HORNSBY, U.S. MAGISTRATE JUDGE
Lydell McGee (“Plaintiff”), who is
self-represented, filed this civil action against three
individuals with whom he allegedly co-owns some tracts of
property in Webster Parish, Louisiana. Plaintiff alleges that
it is necessary that the property be partitioned by judicial
sale, with the proceeds of the sale divided among the owners.
The complaint does not assert a colorable federal claim, and
the amount in controversy is not sufficient for diversity
jurisdiction. For the reasons that follow, it is recommended
that the complaint be dismissed for lack of subject-matter
who lives in California, alleges that he is the brother of
William, Donald, and James McGee. Plaintiff alleges that he
and his brothers co-own, in indivision, some tracts of
property in Webster Parish. The defendant brothers are
citizens of either Texas or Louisiana. Plaintiff alleges that
attempts to partition the property amicably have not been
successful, so he desires a judicial partition that
culminates with a sheriff's sale and a distribution of
the net proceeds.
is proceeding in forma pauperis, and this court is authorized
by 28 U.S.C. § 1915(e)(2) to review IFP complaints and
dismiss them if they are frivolous. The court also has a duty
to examine the basis for subject matter jurisdiction.
Torres v. Southern Peru Copper Corp., 113 F.3d 540,
542 (5th Cir. 1997). If subject matter jurisdiction over the
complaint is lacking, dismissal is appropriate for that
reason and pursuant to § 1915. Humphries v. Various
Federal U.S. INS Employees, 164 F.3d 936, 941 (5th Cir.
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 114 S.Ct.
1673, 1675 (1994). “They possess only that power
authorized by Constitution and statute.” Id.
There is a presumption that a suit lies outside that limited
jurisdiction. Howery v. Allstate Ins. Co., 243 F.3d
912, 916 (5th Cir. 2001). The burden of establishing grounds
for jurisdiction rests on the party who seeks the federal
forum. Settlement Funding, LLC v. Rapid Settlements,
Limited, 851 F.3d 530, 537 (5th Cir. 2017). One basis
for original jurisdiction is diversity jurisdiction under 28
USC § 1322.
basis for jurisdiction often invoked in civil cases is
federal question jurisdiction under 28 U.S.C. § 1331.
The existence of jurisdiction under the statute is tested by
the well-pleaded complaint rule. It provides that a federal
court does not have federal question jurisdiction unless a
federal question appears on the face of the plaintiff's
well-pleaded complaint. Elam v. Kan. City S. Ry.
Co., 635 F.3d 796, 803 (5th Cir. 2011).
completed a Civil Cover Sheet on which he checked a box to
indicate federal question was the basis of jurisdiction. The
form asked him to cite the statute under which he was
proceeding. He cited the United States Constitution First
Amendment (right to petition the government) and Fifth
Amendment (due process). His complaint, near the page numbers
on each page, also refers to the First and Fifth Amendments,
as well as provisions of the Louisiana Constitution, but none
of the allegations in his complaint attempt to state a claim
based on those constitutional provisions. The court can
discern no basis to assert a constitutional law claim against
the private citizen defendants in this case. Plaintiff makes
reference to federal laws in his filings, but he must allege
a colorable federal claim to support jurisdiction. A claim
that is made solely for obtaining jurisdiction, or that is
wholly insubstantial and frivolous, is not adequate to
support jurisdiction. In re KSRP, Ltd., 809 F.3d
263, 267 (5th Cir. 2015), citing Arbaugh v. Y&H
Corp., 126 S.Ct. 1235, 1244 (2006). Plaintiff has not
pleaded a colorable federal claim against his brothers.
Accordingly, there is no basis for the exercise of federal
basis for original jurisdiction is diversity jurisdiction
under 28 U.S.C. § 1322. For diversity jurisdiction to
exist, the amount in controversy must exceed $75, 000, and
there must be complete diversity of citizenship. There is
complete diversity of citizenship between Plaintiff
(California) and his brothers (Texas and Louisiana), but the
record does not reflect an adequate amount in controversy.
allegations in the body of the complaint does not set forth
any information about the value of the land or other
information relevant to the amount in controversy. Plaintiff
wrote on his Civil Cover Sheet that there was “over
$75, 000 in controversy, ” but the exhibits to his
complaint do not support that conclusory statement. And those
exhibits are a part of the complaint for all purposes. Fed.
R. Civ. Pro. 10(c); United States ex rel. Riley v. St.
Luke's Episcopal Hosp., 355 F.3d 370, 375 (5th Cir.
exhibits are printouts from the Webster Parish Tax Assessor
with information for each of parcels at issue. The exhibits
show that the market value for each of the four tracts is $4,
000, $23, 000, $500, and $3, 000, for a total of $30, 500.
The market values listed on the Tax Assessor records may not
be precise, and they are often lower than the actual value,
but there is a tremendous difference between $30, 500 and
$75, 000. Plaintiff, as the party invoking jurisdiction, has
the burden of ...