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United States District Court Eastern District of Louisiana Case 2:11-cv-01177-HGB Document 5 Filed 07/22/11 Page 1 of 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA PAIGE MARIE TOMBERLIN CIVIL ACTION VERSUS NO. 11-1177 STEVEN SEAGAL LAW OFFICES SECTION “C” (2) REPORT AND RECOMMENDATION This case involves an alleged theft of property that this court regrettably is powerless to address. Plaintiff, Paige Marie Tomberlin, filed this action pro se and in forma pauperis. Her written submission was virtually incomprehensible, failing to meet even the minimal notice requirements of Fed. R. Civ. P. 8(a). Using a fill-in-the-blanks form of complaint, plaintiff listed the defendant in the caption as “Steven Seagal law offices.” In her “statement of the parties,” she listed “old Garden Oaks party,” “Uncle Bobs (sic) self storage” and “used car dealers Westbank Marrero,” apparently as additional defendants. Record Doc. No. 1, p. 1. Tomberlin wrote “sole heir of Tomberlin estate” as her statement of jurisdiction and “sole heir Paige Tomberlin” as a statement of her claim. Record Doc. No. 1, p.1. In her statement of relief, plaintiff wrote “Belair millionaires in Arizona.” Record Doc. No. 1, p. 2. Her application to proceed in forma pauperis was equally incomprehensible. Because of the incomprehensibility of her written submissions, and because this matter was filed pro se and in forma pauperis, on May 19, 2011, I ordered plaintiff to appear before me. Record Doc. No. 3. My intent in requiring her appearance was to Case 2:11-cv-01177-HGB Document 5 Filed 07/22/11 Page 2 of 12 determine whether plaintiff was eligible to proceed in forma pauperis and to permit her to explain what her claim might be, accepting all testimony as true, to determine if the action should proceed under 28 U.S.C. § 1915(e). Plaintiff appeared before this court on June 7, 2011, and based upon her sworn testimony concerning her financial condition and status, her application to proceed in forma pauperis was granted. Record Doc. No. 4. I then asked plaintiff to explain her complaint under oath. She initially stated that her claim was not against the entity “Steven Seagal law offices,” but against Steven Seagal the actor.1 Plaintiff alleged that Steven Seagal stole her 2004 Mazda automobile after the preseason football game between the Houston Texans and the New Orleans Saints on August 21, 2010. Plaintiff said the car was packed for a visit to her grandmother and contained clothing and a Magnavox television set purchased with the proceeds of her late husband’s estate. Tomberlin stated “they” told her the actor had stolen her vehicle. Plaintiff did not clarify who “they” were, but said that the actor was “up to his old tricks again” and “had been doing stuff with people in Las Vegas and Reno.” Tomberlin claimed that Seagal sold the car to a cheerleader at a used car lot near the Superior Honda2 automobile dealership in Harvey, Louisiana. During her court appearance, however, plaintiff regretted including the actor in her suit and asked the court remove his 1Steven Seagal is a television and film performer, known for such works as Under Siege and Under Siege 2: Dark Territory. http://www/imdb.com/name/nm0000219 2Superior Honda is located at 1845 Westbank Expressway, Harvey, Louisiana 70058. http://superiorhonda.net 2 Case 2:11-cv-01177-HGB Document 5 Filed 07/22/11 Page 3 of 12 name from the complaint. She said the portion of her complaint involving Steven Seagal was “B.S.” and that he could keep her car. Plaintiff testified that she formerly resided in apartment No. A2 in the Garden Oaks3 apartment complex (“Garden Oaks”) in the Algiers section of New Orleans. She said she has lived in New Orleans for the past two and one-half years. She stated that her real complaint is against Don Kelsey, manager of Garden Oaks, and Gary Jones, a maintenance worker at the complex. Plaintiff stated that in July 2009, Kelsey and Jones entered her apartment and stole $14,400.00 in cash from beneath her mattress. She testified that she had inherited the money in the form of a U.S. Treasury check as part of her late husband’s estate and that she cashed the check and stored the money in her apartment because the bank was closed. She stated that she was asleep in her apartment when the theft occurred, and she learned of Kelsey’s and Jones’s involvement when the daughter of one of the men confessed to her. Tomberlin alleged that Kelsey is currently hiding money from her late husband’s estate inside his safe. Earlier, plaintiff had testified that her late husband’s estate was valued at $49,700.00, the entirety of which she had spent. Tomberlin testified that after the theft she removed her belongings from the Garden Oaks apartment and paid $900.00 to have them stored in Unit No. 1163 at Uncle Bob’s 3Garden Oaks, L.L.C., located at 3300 Garden Oaks Drive, New Orleans, Louisiana 70114. http://neworleans.citysearch.com/profile/612555420/new_orleans_la/garden_oaks_llc.html 3 Case 2:11-cv-01177-HGB Document 5 Filed 07/22/11 Page 4 of 12 Self-Storage.4 She alleged that the storage facility manager agreed to “turn his head” while Kelsey and Jones stole the contents of Tomberlin’s storage unit, which contained goods and furniture purchased in part with the proceeds of her late husband’s estate. For the following reasons, IT IS RECOMMENDED that plaintiff’s complaint be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Although I am sympathetic to plaintiff’s condition, this court does not have the legal power to address the claims she asserts in her complaint. To the extent that plaintiff seeks to pursue her claims against these defendants, she must do so in the appropriate state court. ANALYSIS I. STANDARDS OF REVIEW (A) Subject Matter Jurisdiction This court exercises only limited jurisdiction and must, at all times, examine and be satisfied of its own subject matter jurisdiction. Subject matter jurisdiction “is nonwaivable and delimits federal-court power . Subject-matter limitations on federal jurisdiction . keep the federal courts within the bounds the Constitution and Congress have prescribed. Accordingly, subject-matter delineations must be policed by the courts on their own initiative even at the highest level.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter 4An Uncle Bob’s Self-Storage facility is located at 3200 General De Gaulle Drive in the Algiers section of New Orleans. http://unclebobs.com 4 Case 2:11-cv-01177-HGB Document 5 Filed 07/22/11 Page 5 of 12 jurisdiction, the court must dismiss the action.”5)); accord Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945 (2009). Even if “neither party raises the issue of subject matter jurisdiction, this court must consider jurisdiction sua sponte.” Equal Emp’t Opportunity Comm’n v. Agro Distrib., LLC, 555 F.3d 462, 467 (5th Cir. 2009). Tomberlin, as the plaintiff who invokes the court’s jurisdiction, bears the burden to show the basis for subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009). “In evaluating jurisdiction, the district court must resolve disputed facts without giving a presumption of truthfulness to the plaintiff’s allegations.” Id. The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332. Section 1331 provides for “[f]ederal-question” jurisdiction, § 1332 for “[d]iversity of citizenship” jurisdiction. A plaintiff properly invokes § 1331 jurisdiction when she pleads a colorable claim “arising under” the Constitution or laws of the United States.FN10 She invokes § 1332 jurisdiction when she presents a claim between parties of diverse citizenship that exceeds the required jurisdictional amount, currently $75,000. FN10. A claim invoking federal-question jurisdiction under 28 U.S.C. § 1331 . may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is “immaterial and made solely for the purpose of obtaining jurisdiction” or is “wholly insubstantial and frivolous.” Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006) (citing Steel Co., 523 U.S. at 89); (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)). 5The quoted language is the current version of Rule 12(h)(3), which was amended in 2007 to make changes that are “stylistic only.” Fed. R. Civ. P. 12, official comment (2007). 5 Case 2:11-cv-01177-HGB Document 5 Filed 07/22/11 Page 6 of 12 For the following reasons, it is clear that this court lacks subject matter jurisdiction over plaintiff’s claims concerning the actions of private individuals who, like plaintiff, are Louisiana citizens for diversity purposes. (B) Diversity of Citizenship Jurisdiction It is clear from plaintiff’s submissions that complete diversity of citizenship jurisdiction does not exist. Diversity jurisdiction exists when the claims in the complaint are between citizens of different states and when the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). The law is long established that, when federal jurisdiction is based on diversity of citizenship, complete diversity must exist between all adverse parties in the action; i.e., plaintiff’s citizenship must be diverse from the citizenship of each defendant.
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