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McMillan v. Ratner Companies

United States District Court, D. South Carolina

July 19, 2019

Calvin Jerome McMillan, Plaintiff,
v.
Ratner Companies and Dennis Ratner, Defendants.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

         Calvin Jerome McMillan (“Plaintiff”), proceeding pro se and in forma pauperis, filed this action against Ratner Companies and Dennis Ratner (collectively, “Defendants”), alleging breach of contract. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss this action without issuance and service of process.

         I. Factual and Procedural Background

         Plaintiff filed his complaint on June 13, 2019. [ECF No. 1]. On June 17, 2019, the court issued an order notifying Plaintiff of certain pleading deficiencies and granting him an opportunity to cure those deficiencies through an amended complaint. [ECF No. 9]. Plaintiff filed an amended complaint on July 1, 2019. [ECF No. 11].

         Plaintiff alleges Defendants are the parent company and owner of his former employer, Hair Cuttery. [ECF No. 1 at 1-2]. In 2004, Plaintiff brought an employment action against Defendants, alleging sex discrimination and constructive discharge during his employment from 2003 to 2004. See McMillan v. Ratner Companies, C/A No. 3:04-22787 (D.S.C. Oct. 27, 2004).[1]Plaintiff asserts he and Defendants settled that case. [ECF No. 11-1 at 1].

         Plaintiff alleges his wife filed for divorce in 2011. Id. at 2. He asserts, in 2013, one of his wife's friends, who was a manager at Hair Cuttery, told his wife he had misrepresented information in his suit against Defendants. Id. Plaintiff contends his wife then used this information in their divorce proceedings and the divorce proceedings did not go well. Id. at 2-3.

         The remainder of Plaintiff's amended complaint provides background on his prior employment dispute with Defendants, allegations against local attorneys, and information regarding his divorce, custody arrangements, and his relationship with an ex-girlfriend. Id. Plaintiff alleges causes of action for breach of contract under 41 U.S.C. § 6503 and conspiracy to commit offense or defraud under 18 U.S.C. § 371. [ECF No. 11 at 3]. He seeks $10, 000, 000.00. Id. at 4.

         II. Discussion

         A. Standard of Review

         Plaintiff filed his complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).

         Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

         B. Analysis

         Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists “and to dismiss the action if no such ground appears.” Id. at 352; see also 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.”). Although the absence of subject matter jurisdiction may be raised at any time during the case, determining jurisdiction at the outset of the litigation is the most efficient procedure. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999).

         There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v. City of Frederick, MD., 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in his pleadings. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189-90 (1936); seealso Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) (“[P]laintiffs must affirmatively plead the jurisdiction of the federal court.”). To this end, Fed.R.Civ.P. 8(a)(1) requires the complaint provide “a short and plain statement of the grounds for the court's jurisdiction[.]” When a complaint fails to include “an affirmative pleading of a jurisdictional basis[, ] a federal court may find that it has jurisdiction if the facts supporting jurisdiction have been clearly pleaded.” Pinkley, 191 ...


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