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Thymes v. AT & T Mobility Services LLC

United States District Court, W.D. Louisiana, Lafayette Division

February 26, 2019




         This Court, on its own order (Rec. Doc. 4), has undertaken a sua sponte review of the court's subject-matter jurisdiction over this action. This Court has also reviewed the plaintiff's complaint sua sponte under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, it is ordered that the plaintiff shall file an amended complaint not later than March 18, 2019.


         In June 2018, the plaintiff filed suit against AT&T Mobility, LLC, Sans Chevaux Investments, LLC, CIA/Cointelpro, L'Auberge Casino and Hotel, and U.S. Equal Employment Opportunity Commission in a lawsuit that was assigned Civil Action No. 6:18-cv-00867. This Court undertook a sua sponte jurisdictional review and recommended that the suit be dismissed for lack of subject-matter jurisdiction. (Rec. Doc. 105 in No. 6:18-cv-00867). This Court's recommendation was adopted, and the suit was dismissed without prejudice. (Rec. Doc. 107 in No. 6:18-cv-00867).

         In January 2019, the plaintiff initiated a lawsuit assigned Civil Action No. 6:19-cv-00060 by removing a suit from the 15th Judicial District Court, Lafayette Parish, Louisiana, to this forum. The plaintiff stated, in the removal notice, that the suit was originally brought by San Chevaux Investments, LLC against Mr. Thymes and assigned Docket No. 20190295 on the state court's docket. Although the plaintiff stated that he attached a copy of the petition as an exhibit to his complaint, he did not do so. Instead, he attached a copy of a rule nisi in which he was being required to show cause why he had violated an order issued by the state court. (Rec. Doc. 1 at 6 in No. 19-cv-00060). The plaintiff further stated that the federal court had jurisdiction over the action under 28 U.S.C. § 1331 because it involved allegations that the Fair Housing Act had been violated. But there is no evidence that the claims asserted by the plaintiffs in the state court action against Mr. Thymes arose under federal law. Instead, Mr. Thymes attempted to assert a counter-claim against Sans Chevaux Investments, LLC and others under the Fair Housing Act. (Rec. Doc. 6 in No. 6:19-cv-00060). Because he had not requested leave of court to file the counter-claim, the counter-claim was stricken from the record. (Rec. Doc. 15 in No. 6:19-cv-00060). Mr. Thymes also reiterated the same claims against the same parties that he had articulated in Civil Action No. 6:18-cv-00867. Accordingly, the case was dismissed for lack of subject-matter jurisdiction. (Rec. Doc. 5 in No. 6:19-cv-00060).

         The claims asserted in the two earlier lawsuits have been dismissed, and nothing further can be filed by the plaintiff in either of those lawsuits.

         Mr. Thymes then initiated this third lawsuit, which was assigned Civil Action No. 6:19-cv-00090. He sued the same five defendants: AT&T Mobility Services, LLC; Sans Chevaux Investments, LLC; CIA/(FBI)COINTELPRO; L'Auberge and Hotel Casino/Pinnacle Entertainment; and U.S. Equal Employment Opportunity Commission (“EEOC”).

         In support of his claims against AT&T Mobility Services, LLC, the plaintiff alleged that, during his employment with AT&T Mobility, he was subjected to a hostile work environment and racial discrimination that caused him to become ill and resign his position.

         In support of his claims against Sans Chevaux, the plaintiff alleged that Robert Leonard, the owner of Sans Chevaux, failed to renegotiate a lease/purchase agreement after the plaintiff brought to his attention the fact that the house subject to the agreement had termites and roof damage. He alleged that Mr. Leonard never provided him with a Louisiana Residential Property Disclosure Agreement, and he further alleged that his air conditioner does not blow cold air, the house has termites, and the roof is damaged. With regard to this defendant, he also alleged civil rights discrimination with respect to the Fair Housing Act.

         In his claims against CIA/FBI/COINTELPRO, which is alleged to be a federal agency, the plaintiff alleged that a default judgment was entered against this defendant in a state court proceeding, and he sought to have this court issue a judgment that acknowledges the earlier default and operates “to immediately stop” this defendant from harassing him.

         The plaintiff sued L'Auberge, alleging that there was a delay in checking into his hotel room, the valet parking attendants could not locate his car or his keys, he was harassed while in his hotel room, he was followed by security personnel, he was not promptly served in a restaurant, and all of this resulted in his losing $150, 000[1]while gambling. He alleged that the casino used hypnosis to deliberately keep him in the casino, causing him “to lose even more money.”

         In his claims against the EEOC, the plaintiff alleged that the EEOC violated its policies in handling the discrimination charge that he filed against AT&T Mobility.

         Mr. Thymes claims that all of the defendants are liable to him for the intentional infliction of emotional distress.

         Law and Analysis

         A .Pro Se Status

         Mr. Thymes is proceeding in this lawsuit without the assistance of legal counsel. A pro se litigant's pleadings are construed liberally[2] and held to “less stringent standards than formal pleadings drafted by lawyers.”[3] However, a pro se “plaintiff must prove, by a preponderance of the evidence, that the court has jurisdiction based on the complaint and evidence.”[4] Furthermore, a pro se plaintiff must also abide by the rules that govern federal courts[5] and properly plead sufficient facts that, when liberally construed, state a plausible claim to relief.[6] A court may sua sponte dismiss a plaintiff's claims on its own motion under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim so long as the plaintiff has notice of the court's intention to do so and an opportunity to respond.[7] However, a court should generally allow a pro se plaintiff an opportunity to amend his complaint before dismissing it for failure to state a claim.[8]

         B. Subject-Matter Jurisdiction

         Federal district courts are courts of limited jurisdiction, possessing only the power authorized by the Constitution and by statute.[9] Accordingly, federal courts have subject-matter jurisdiction only over civil actions presenting a federal question[10] and those in which the amount in controversy exceeds $75, 000 exclusive of interest and costs and the parties are citizens of different states.[11] A suit is presumed to lie outside a federal court's jurisdiction until the party invoking federal-court jurisdiction establishes otherwise.[12]

         Absent subject-matter jurisdiction, a federal court has no power to adjudicate claims and must dismiss an action if subject-matter jurisdiction is lacking.[13]“Federal courts, both trial and appellate, have a continuing obligation to examine the basis for their jurisdiction. The issue may be raised by parties, or by the court sua sponte, at any time.”[14] Rule 12(h)(3) of the Federal Rules of Civil Procedure states that “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” A district court may dismiss a case for lack of subject-matter jurisdiction on the basis of “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”[15]

         The party asserting federal jurisdiction has the burden of proving its existence by a preponderance of the evidence.[16] Accordingly, the plaintiff must bear that burden in this case.

         D. Diversity Jurisdiction

         It is not clear from the face of the plaintiff's complaint whether he is asserting federal-court jurisdiction on the basis of diversity of citizenship. He included some jurisdictional facts when identifying the parties, and he quoted (without citation) the rule set forth in 28 U.S.C. § 1332(c)(1) regarding a corporation's citizenship. If he is claiming only federal-question jurisdiction, then these portions of the complaint are superfluous and meaningless; therefore, out of an abundance of caution, it is necessary to analyze whether the court has subject-matter jurisdiction under 28 U.S.C. § 1332.

         A federal court may exercise “original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, ” and the parties are “citizens of different States.”[17] The diversity statute requires complete diversity of citizenship, meaning that all persons on one side of the controversy must not share the same citizenship as any person on the other side.[18] “The burden of proving that complete diversity exists rests upon the party who seeks to invoke the court's diversity jurisdiction.”[19] The plaintiff in this case must bear that burden.

         When jurisdiction depends on citizenship, citizenship must be distinctly and affirmatively alleged.[20] In this case, the plaintiff did not set forth in his complaint all of the facts necessary to establish the citizenship of the parties that he sued. However, there is evidence establishing that the parties are not diverse because the plaintiff and one of the defendants, Sans Chevaux Investments, LLC, are citizens of the same state.

         The citizenship of a natural person is determined by the state in which he or she is domiciled.[21] In his complaint, Mr. Thymes alleged that he is a citizen of Louisiana. This representation is accepted as true.

         From the use of the abbreviation “LLC” in its name, it appears that San Chevaux is a limited liability company. A limited liability company is a citizen of every state in which any member of the company is a citizen, [22] and the citizenship of an LLC is determined by the citizenship of all of its members.[23] Therefore, the diversity analysis for a limited liability company requires a determination of the citizenship of every member of the company.[24] If any one of the members is not diverse, the limited liability company is not diverse. Although the plaintiff did not supply the information necessary to evaluate San Chevaux's citizenship in his complaint, that information was provided to the court in a previous lawsuit. In support of a motion to dismiss filed in another suit (Rec. Doc. 83 in No. 6:18-cv-00867), San Chevaux represented that it is a limited liability company with a single member, Robert Leonard, and further represented that Mr. Leonard is a citizen of Louisiana. This Court takes judicial notice of that information and accepts the representations made on behalf of San Chevaux as establishing that the company is a Louisiana citizen.

         Because the plaintiff and San Chevaux are citizens of the same state, the plaintiff and at least one defendant are citizens of the same state, and complete diversity does not exist. For that reason, it is not necessary to evaluate the citizenship of the other defendants or to determine whether the plaintiff has established a sufficient amount in controversy. This Court finds that the plaintiff did not - and cannot - satisfy his burden of establishing that the court has subject-matter jurisdiction under 28 U.S.C. § 1332. Accordingly, the court lacks diversity jurisdiction and, for the court to have subject-matter jurisdiction over the plaintiff's claims, the court must have federal-question jurisdiction.

         E. Federal-Question Jurisdiction

         Federal courts possess original jurisdiction over civil actions arising under federal law.[25] “A suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution.”[26] Federal-question jurisdiction is most frequently invoked when the federal law creates the cause of action.[27] However, federal-question jurisdiction has also been found in some state-law claims if “(1) resolving a federal issue is necessary to resolution of the state-law claim; (2) the federal issue is ...

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