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Rega v. Rega

United States District Court, D. South Carolina, Aiken Division

September 17, 2019

Robert Gene Rega, Plaintiff,
v.
Lorraine Rega, Defendant.

          ORDER AND REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE

         Plaintiff Robert Gene Rega filed this state law damages action against Defendant Lorraine Rega, invoking the court's diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1).[1] The parties are proceeding without counsel. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the parties' cross motions for summary judgment. (ECF Nos. 83 & 90.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised the parties of the summary judgment and dismissal procedures and the possible consequences if they failed to respond adequately to the opposing party's motion. (ECF Nos. 85 & 93.) Robert[2] filed a response in opposition to Lorraine's motion, which Robert supplemented, and to which Lorraine replied.[3][4] (ECF No. 100.) Having reviewed the record presented and the applicable law, the court concludes that this action should be dismissed because the court lacks subject matter jurisdiction.

         BACKGROUND

         The parties strongly disagree over the facts in this case. The central issue in this case is whether Lorraine broke an agreement she had with Robert to use some of Robert's money to take care of Robert's mother. Robert is incarcerated in Pennsylvania. Lorraine lives in South Carolina and was previously married to Robert's brother. In his verified pleading, Robert alleges that while incarcerated between 2015 and 2018, he regularly spoke with Lorraine by telephone to arrange for care of his mother, [5] who was diagnosed with early stage dementia and Alzheimer's disease in 2017. (Am. Compl. ¶¶ 10-11, ECF No. 15 at 4.)

         Robert alleges that in April 2017 he sent Lorraine $1, 480 in “petty cash” via his attorney so that Lorraine could make “online purchases” for Robert's mother. (Id. ¶ 14.) He also alleges that in February 2018 he sent $2, 500 to his mother, but then sent the same money to Lorraine for “safe keeping.” (Id. ¶ 16, ECF No. 15 at 5.) Robert alleges he considered the $2, 500 to be his “personal savings” and that Lorraine agreed to not use the money for any reason and to return the money at Robert's request. (Id. ¶¶ 16-17.) Robert alleges that in March 2018 he requested that Lorraine use up to $400 of his “petty cash” to buy a digital surveillance system for his mother's home, which Lorraine agreed to monitor and report any problems to Robert. (Id. ¶¶ 18-19.) Robert alleges Lorraine purchased the surveillance system with Robert's mother's debit card instead, so Robert reimbursed his mother. (Id. ¶ 18.)

         However, Robert alleges he and Lorraine disagreed over how to properly sync Lorraine's cell phone to the surveillance system. (Id. ¶¶ 20-22., ECF No. 15 at 5-6.) Robert alleges he and Lorraine “tentatively discussed” having his mother's assistant mail the system to Lorraine so that she could sync her phone to the system. (Id. ¶ 22.) Robert further alleges he and Lorraine discussed the “possibility” he would have his laptop mailed to Lorraine for safekeeping, and he alleges Lorraine “agreed to hold and secure” the laptop if it was sent. (Id. ¶ 23, ECF No. 15 at 6.)

         Robert alleges he never finally decided whether to have the surveillance system and laptop mailed to Plaintiff. (Id. ¶ 28, ECF No. 15 at 7.) Instead, Robert alleges, in August 2018, Lorraine misled Robert's mother's assistant into believing that Robert authorized the shipping of the surveillance system and laptop to Lorraine, and the assistant shipped them to Lorraine that day. (Id. ¶¶ 28-29.) Robert alleges he “acquiesced to the preemptive shipping” of the items because Lorraine assured him that she would return them at his request. (Id. ¶ 31.)

         After that, Robert alleges, Lorraine began making excuses for why she would not use his petty cash to make purchases Robert requested she make for his mother. (Id. ¶ 33, ECF No. 15 at 8.) Robert also alleges that he began requesting that Lorraine send him $300 of his money every weekend but Lorraine gave him excuses why she could not send it. (Id. ¶ 35.) Robert alleges that sometime between September 25 and October 18 of 2018, he repeatedly called Lorraine requesting that his entire savings, laptop, and surveillance system be mailed to his mother. (Id. ¶ 36, ECF No. 15 at 8-9.) Robert alleges he has received only $300 from Lorraine, that Lorraine has refused to take his calls, and that Lorraine contacted Robert's prison to ask that Robert be prohibited from calling her. (Id. ¶¶ 36-39, ECF No. 15 at 9.) Robert alleges Lorraine has unlawfully retained $2, 200 of his personal cash, the digital surveillance system worth approximately $400, and his laptop with propriety software worth $83, 700. (Id. ¶ 42, ECF No. 15 at 9-10.) Robert claims Lorraine used their personal history and his trust in her to scam him out of his property. (Id. ¶ 41, ECF No. 15 at 9.)

         Robert filed this action on January 20, 2019. Robert lists various state law causes of action seeking damages on tort, contract, and equitable theories of relief. Specifically, Robert lists causes of action for conversion, fraud, negligence, trespass, replevin, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, assumpsit, promissory estoppel, and unjust enrichment. Robert seeks specific damages of $86, 300 for his lost property and $100, 000 in punitive damages.

         Robert filed this matter asserting that the court has subject matter jurisdiction over this controversy based on diversity jurisdiction.[6] (Am. Compl. ¶¶ 2-5, ECF No. 15 at 3.) In her motion for summary judgment, Lorraine argues that the court lacks jurisdiction over this action because Robert fails to meet the amount in controversy requirement of 28 U.S.C. § 1332(a). Specifically, she challenges Robert's claim that the software on the laptop computer is worth $83, 700. (ECF No. 90 at 1-2.) In light of Lorraine's pro se status, the court construes this argument as seeking dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).[7] [8]

         DISCUSSION

         A. Applicable Standard

         Dismissal under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); 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.”).

         To resolve a jurisdictional challenge under Rule 12(b)(1), the court may consider undisputed facts and any jurisdictional facts that it determines. The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: “(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.” Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).

         Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus,551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a ...


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