United States District Court, S.D. Florida
ORDER DISMISSING AMENDED COMPLAINT
N. Scola, Jr. United States District Judge.
Freeman, proceeding in forma pauperis, brings this
lawsuit against PNC Bank, N.A. (“PNC”) for money
that PNC allegedly owes him. This matter is before the Court
on the Defendant's Motion to Dismiss for failure to state
a claim upon which relief can be granted (ECF No. 18). For
the reasons set forth in this Order, the Court dismisses the
Amended Complaint for lack of subject matter jurisdiction.
brings this action under Article 3, Section 2 of the United
States Constitution. (Am. Compl. ¶ 3, ECF No. 16.)
Freeman alleges that PNC owes him $5, 500, plus interest,
“for money received by PNC via deposit of private
contract #118” and “private contract #122”
to Freeman's account, which Freeman alleges was payable
to him “in consideration of work performed in the State
of Florida.” (Id. ¶¶ 4-5.) Freeman
states that he “had a reasonable expectation that PNC
Bank would pay the debts due to me in gold coin or the
bullion market value of gold coin. . .” and alleges
that PNC has improperly seized his property. (Id.
filed a complaint on October 25, 2016 (ECF No. 1). PNC
subsequently filed a motion to dismiss the complaint for
failure to state a claim (ECF No. 14.) Freeman failed to
respond to the motion to dismiss, and the Court ordered
Freeman to file a response or show cause why he failed to
comply (ECF No. 15). On February 14, 2017, Freeman filed an
Amended Complaint (ECF No. 16). PNC has moved to dismiss the
Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) (ECF No. 18). The Court has determined that it does
not have subject matter jurisdiction over this action.
district court must have at least one of three types of
subject-matter jurisdiction: (1) jurisdiction pursuant to a
specific statutory grant; (2) federal question jurisdiction;
or (3) diversity jurisdiction. Butler v. Morgan, 562
Fed. App'x. 832, 834 (11th Cir. 2014) (citations
omitted). “The burden for establishing federal subject
matter jurisdiction rests with the party bringing the
claim.” Sweet Pea Marine, Ltd. v. APJ Marine,
Inc., 411 F.3d 1242, 1247 (11th Cir. 2005).
“[F]ederal courts always have an obligation to examine
sua sponte their jurisdiction before reaching the
merits of any claim.” Kelly v. Harris, 331
F.3d 817, 819 (11th Cir. 2003) (citing Region 8 Forest
Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800,
807 n. 9 (11th Cir. 1993)).
may dismiss a federal question claim “for lack of
subject-matter jurisdiction if (1) the alleged claim under
the Constitution or federal statutes clearly appears to be
immaterial and made solely for the purpose of obtaining
jurisdiction, or (2) such a claim is wholly insubstantial and
frivolous.” Butler v. Morgan, 562 Fed.
App'x. 832, 834 (11th Cir. 2014) (per curiam) (citing
Blue Cross & Blue Shield of Ala. V. Sanders, 138
F.3d 1347, 1352 (11th Cir. 1998)); see also Bell v.
Hood, 327 U.S. 678, 682-83 (1946) (noting that although
typically a court must assume jurisdiction in order to
determine whether a complaint states a cause of action,
“a suit may sometimes be dismissed for want of
jurisdiction where the alleged claim under the Constitution
or federal statutes clearly appears to be immaterial. . . or
where such a claim is wholly insubstantial and
frivolous.”); McGinnis v. Ingram Equipment Co.,
Inc., 918 F.2d 1491, 1494 (11th Cir. 1990) (citations
omitted) (“[t]he test of federal jurisdiction is not
whether the cause of action is one on which the claimant may
recover. Rather, the test is whether ‘the cause of
action alleged is so patently without merit as to justify. .
. the court's dismissal for want of
jurisdiction.'”) A claim is wholly insubstantial
and frivolous if it has no plausible foundation.
Butler, 562 Fed. App'x. at 834.
addition, a district court may dismiss a case proceeding
in forma pauperis at any time if it determines that
the action is frivolous or fails to state a claim on which
relief can be granted. 28 U.S.C. 1915(e)(2)(B)(i); see
also Broner v. Washington Mut. Bank, FA, 258 Fed.
App'x. 254, 256 (11th Cir. 2007). “A claim is
frivolous if it is without arguable merit either in law or
fact.” Id. (citing Bilal v. Driver,
251 F.3d 1346, 1349 (11th Cir. 2001) (internal quotations
the Amended Complaint seeks judgment in the amount of $5, 500
plus interest, Freeman has not sufficiently alleged that
diversity jurisdiction exists. See 12 U.S.C. §
1332(a) (requiring that the amount in controversy exceed the
value of $75, 000 exclusive of interest and costs to
establish diversity jurisdiction). Freeman has also not
sufficiently established that federal question jurisdiction
exists or that jurisdiction exists pursuant to a specific
statutory grant. The Amended Complaint cites to Article 3,
Section 2 of the Constitution, which states that the judicial
power extends to all cases arising under the Constitution,
the laws of the United States, and treaties made under their
authority. This provision of the Constitution confers subject
matter jurisdiction on federal district courts over civil
actions arising under the Constitution, laws, or treaties of
the United States. See 28 U.S.C. § 1331.
However, since Freeman has cited to no Constitutional
provision, federal law, or treaty that authorizes this suit,
Freeman has not established that this Court has subject
also includes the following quote from Article 1, Section 10
of the Constitution in the Amended Complaint: “No State
shall; make any Thing but gold or silver coin a Tender in
Payment of Debts; pass any bill of Attainder, ex post facto
law impairing the obligation of contracts.” (Am. Compl.
¶ 6A, ECF No. 16.) However, as PNC notes in its motion
to dismiss, Congress suspended the gold standard in 1933.
H.J.R. Res. 192, 73d Cong., (1st Session 1933). Freeman also
cites to the Supremacy Clause, the Appropriations Clause, and
the Fourteenth Amendment, none of which have any relation to
the factual allegations in the Amended Complaint. (Am. Compl.
¶¶ 6B, 6C, 6D, ECF No. 16.) Finally, the Amended
Complaint cites to Title 38 of the Florida Statutes.
(Id. ¶ 8.) However, Title 38 is a state law
concerning disqualification of judges and is inapplicable to
even under the less stringent standards applied to pro se
pleadings, the Amended Complaint is frivolous because
Freeman's claims are wholly insubstantial and have no
plausible legal basis that would confer subject matter
jurisdiction on this Court.