United States District Court, M.D. Florida, Jacksonville Division
ALBERT N. HEICHBERGER, Plaintiff,
MS. TRACY BAERMAN, Facility Manager and ATLANTIC SELF STORAGE, Defendants.
REPORT AND RECOMMENDATION 
R. KLINDT UNITED STATES MAGISTRATE JUDGE.
cause is before the Court on the Application to Proceed in
District Court Without Prepaying Fees or Costs (Long Form)
(Doc. No. 2), filed March 12, 2019, that the Court construes
as a Motion to Proceed In Forma Pauperis
(“Motion”). Upon review of the file, the
undersigned recommends that the case be dismissed for
frivolity and lack of subject matter jurisdiction.
initiated this action pro se on March 12, 2019 by
filing a Complaint and Request for Injunction (Doc. No. 1;
“Complaint”). On March 14, 2019, the undersigned
entered an Order (Doc. No. 3; “Order”), taking
the Motion under advisement. Observing that the Complaint
appeared subject to dismissal for failure to state a claim
upon which relief may be granted, the undersigned directed
Plaintiff to file an Amended Complaint by April 15, 2019;
alternatively, Plaintiff was directed to pay the filing fee
by April 15, 2019. See Order at 1, 6. On March 27,
2019, Plaintiff filed an Amended Complaint. See
Amended Complaint, Request for Injunction and Jury Trial
Demanded (Doc. No. 5; “Amended Complaint”).
Plaintiff, however, has failed to cure the deficiencies
initially identified in the Order. See Order at 4.
may, upon a finding of indigency, authorize the commencement
of an action without requiring the prepayment of costs, fees,
or security. 28 U.S.C. § 1915. The Court's decision
to grant in forma pauperis status is discretionary.
See Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir.
1983); Lane v. Fort Walton Beach Hous. Auth., 518
Fed.Appx. 904, 915 n.11 (11th Cir. 2013) (citation omitted).
While a litigant need not show he is “absolutely
destitute” to qualify for pauper status under §
1915, a litigant does need to show an inability “to pay
for the court fees and costs, and to support and provide
necessities for himself and his dependents.”
Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305,
1307 (11th Cir. 2004); see also Lane, 518 Fed.Appx.
at 915 (citation omitted).
receiving an application to proceed in forma
pauperis must dismiss the case sua sponte if it
determines that the action “(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). “In addition, a district court may
sua sponte consider subject matter jurisdiction at
any stage in the litigation and must dismiss a complaint if
it concludes that subject matter jurisdiction is
lacking.” Jackson v. Farmers Ins. Group/Fire Ins.
Exch., 391 Fed.Appx. 854, 856 (11th Cir. 2010)
(unpublished) (citations omitted).
respect to frivolity, the United States Supreme Court has
observed that “a litigant whose filing fees and court
costs are assumed by the public . . . lacks an economic
incentive to refrain from filing frivolous, malicious, or
repetitive lawsuits.” Neitzke v. Williams, 490
U.S. 319, 324 (1989). A complaint filed in forma
pauperis that fails to state a claim under Rule
12(b)(6), Federal Rules of Civil Procedure
(“Rule(s)”), is not automatically frivolous.
Id. at 328. Instead, a court will dismiss a claim
based on frivolity pursuant to § 1915 when the claim
lacks arguable merit in either law or fact. Id. at
325; Mitchell v. Brown & Williamson Tobacco
Corp., 294 F.3d 1309, 1315 (11th Cir. 2002) (quoting
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
2001)). Accordingly, § 1915 requires dismissal when: (1)
the legal theories advanced are “indisputably
meritless, ” Nietzke, 490 U.S. at 327; (2) the
claims rely on factual allegations that are “clearly
baseless, ” Denton v. Hernandez, 504 U.S. 25,
32 (1992); or (3) when it appears that the plaintiff has
little or no chance of success, Bilal, 251 F.3d at
1349 (citation omitted).
respect to whether a complaint “fails to state a claim
on which relief may be granted, ” §
1915(e)(2)(B)(ii) mirrors the language of Rule 12(b)(6), so
courts apply the same standard in both contexts. Mitchell
v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997);
see also Alba, 517 F.3d at 1252 (citation omitted).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Labels and conclusions”
or “a formulaic recitation of the elements of a cause
of action” that amount to “naked
assertions” will not do. Id. (quotation and
citation omitted). Moreover, a complaint must “contain
either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some
viable legal theory.” Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001)
(internal quotation and citation omitted).
being able to render a decision on the merits of any case, a
court must have subject matter jurisdiction. See
generally Exxon Mobil Corp. v. Allapattah Servs., 545
U.S. 546, 552 (2005). Federal courts derive subject matter
jurisdiction either through 28 U.S.C. § 1331 (federal
question) or 28 U.S.C. § 1332 (diversity). See Exxon
Mobil Corp., 545 U.S. at 552. Federal question
jurisdiction is invoked when an action “aris[es] under
the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. “[A] suit
‘arises under' federal law ‘only when the
plaintiff's statement of his own cause of action shows
that it is based upon [federal law].'” Vaden v.
Discover Bank, 556 U.S. 49, 60 (2009) (alteration in
original) (quoting Louisville & Nashville R.R. Co. v.
Mottley, 211 U.S. 149, 152 (1908)). Diversity
jurisdiction requires complete diversity of citizenship
between all the parties, and the amount in controversy must
exceed $75, 000. 28 U.S.C. § 1332; Exxon Mobil
Corp., 545 U.S. at 552; Moreno v. Breitburn Fla.,
LLC, No. 2:09-cv-566-FtM-29DNF, 2011 WL 2293124, at *1
(M.D. Fla. June 9, 2011) (unpublished) (citing Morrison
v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir.
2000)). Plaintiff bears the burden of establishing that
diversity jurisdiction exists. Moreno, 2011 WL
2293124, at *1. A natural person's citizenship is
determined by the person's domicile, which is “the
place of his true, fixed, and permanent home and principal
establishment . . . to which he has the intention of
returning whenever he is absent therefrom.”
McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th
Cir. 2002) (quotation and citation omitted).
“‘[A] corporation shall be deemed to be a citizen
of any State by which it has been incorporated and of the
State where it has its principal place of
business.'” Hertz Corp. v. Friend, 130
S.Ct. 1181, 1185 (2010) (quoting 28 U.S.C. §
se pleadings are held to a less strict standard than
pleadings filed by lawyers and thus are construed
liberally.” Alba v. Montford, 517 F.3d 1249,
1252 (11th Cir. 2008) (citing Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998)).
Nevertheless, a court is under no duty to
“re-write” a plaintiff's complaint to find a
claim. Peterson v. Atlanta Hous. Auth., 998 F.2d
904, 912 (11th Cir. 1993).
although it appears Plaintiff may be financially unable to
pay the filing fee, see Motion at 1-5, a review of
the Amended Complaint reveals that the case is due to be
dismissed for frivolity and lack of subject matter
brings this action against Atlantic Self Storage, LLC
(“ASS”) and its facility manager, Tracy
Baerman. Amended Complaint at 1-2. Plaintiff
asserts the Court has subject matter jurisdiction because the
case involves a federal question (28 U.S.C. § 1331), and
he lists the U.S. Economic Espionage Act of 1996
(“EEA”), 18 U.S.C. §§ 1831-39, as the
federal statute at ...