TOLAND v. ACEPLANS LLC et al
| BRITTANY TOLAND |
| ACEPLANS LLC, FIRST HEALTH NETWORK, SALVASEN HEALTH and ACE MEDWISE 4 |
| 1:2021cv00290 |
| April 7, 2021 |
| US District Court for the Middle District of North Carolina |
| L PATRICK AULD |
| THOMAS D SCHROEDER |
| Fraud or Truth-In-Lending |
| 28 U.S.C. § 1332 |
| Plaintiff |
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| Filing 10 JUDGMENT signed by CHIEF JUDGE THOMAS D. SCHROEDER on 5/3/21, adopting the Magistrate Judge's Recommendation, that this action is dismissed without prejudice as frivolous under 28 U.S.C. s 1915(e)(2)(b)(i). (Butler, Carol) |
| CASE REFERRED to CHIEF JUDGE THOMAS D. SCHROEDER RE: TEXT ORDER and RECOMMENDATION dated 4/8/2021. (Engle, Anita) |
| Filing 9 Notice of Mailing Recommendation. Objections to R&R due by 4/23/2021. Objections to R&R for Pro Se due by 4/26/2021. (Hicks, Samantha) |
| Filing 8 TEXT ORDER terminating #6 Application to Proceed in District Court without Prepaying Fees or Costs, in light of the disposition proposed in a separate Text Order and Recommendation dated 04/09/2021. Issued by MAG/JUDGE L. PATRICK AULD on 04/09/2021. (AULD, L.) |
| TEXT ORDER (A) terminating Text Order and Recommendation dated 04/08/2021, in light of Plaintiff's filing of #7 Amended Complaint (as of right under Federal Rule of Civil Procedure 15(a)(1)), and (B) granting #6 Application to Proceed in District Court without Prepaying Fees or Costs, for the limited purpose of (C) recommending that the Court dismiss this action without prejudice as frivolous under 28 U.S.C. s 1915(e)(2)(b)(i). In #2 Complaint, Plaintiff (proceeding pro se) purported to invoke this Court's diversity of citizenship, subject matter jurisdiction. The Text Order and Recommendation dated 04/08/2021 observed that #2 Complaint lacked any factual allegations as to the citizenship of the members of the lone Defendant named therein (identified as a limited liability company). In #7 Amended Complaint, Plaintiff added allegations as to the address (in Florida) of that original Defendant and added three new entities as Defendants (with alleged addresses in Maryland), along with an allegation that formation of all four Defendants occurred under the laws of Florida and Maryland. However, as with #2 Complaint, #7 Amended Complaint fails to offer any factual allegations as to the citizenship of the members of the original Defendant (i.e., the members of that limited liability company). "For purposes of diversity jurisdiction, the citizenship of a limited liability company... is determined by the citizenship of all of its members...." Central W. Va. Energy Co., Inc. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011). In the absence of any allegations as to the citizenship of the members of the original Defendant, #7 Amended Complaint does not establish diversity of citizenship, subject matter jurisdiction in this Court. Further, #7 Amended Complaint, like #2 Complaint, continues to lack sufficient, non-conclusory, factual allegations to support any state-law fraud claim(s). Finally, #7 Amended Complaint re-asserts #2 Complaint's attempt to pursue a federal false claims act (or "qui tam") cause of action; however, as explained in the Text Order and Recommendation dated 04/08/2021, the United States Court of Appeals for the Fourth Circuit has ruled that pro se plaintiffs may not pursue such claims. See Wojcicki v. SCANA/SCE&G, 947 F.3d 240, 246 (4th Cir. 2020). Just as with #2 Complaint, all of these obvious defects in #7 Amended Complaint render this action frivolous and subject to dismissal under Section 1915(e)(2)(b)(i), effected without prejudice, given the jurisdictional and/or procedural nature of certain of the deficiencies and the possibility that Plaintiff could correct the insufficiency of the factual allegations pertaining to her state-law claim(s), if she elects to pursue such claim(s) in state court or can establish a basis for federal jurisdiction. Issued by MAG/JUDGE L. PATRICK AULD on 04/09/2021. (AULD, L.) |
| Filing 7 AMENDED COMPLAINT against defendant All Defendants, filed by BRITTANY TOLAND. (Hicks, Samantha) |
| Filing 6 APPLICATION to Proceed IFP by BRITTANY TOLAND. (Hicks, Samantha) |
| Filing 5 Notice of Mailing Recommendation: Objections to R&R due by 4/22/2021. Objections to R&R for Pro Se due by 4/26/2021. (Sheets, Jamie) |
| Case ASSIGNED to CHIEF JUDGE THOMAS D. SCHROEDER and MAG/JUDGE L. PATRICK AULD. (Sheets, Jamie) |
| Motion Referred: RE: #6 APPLICATION to Proceed IFP to MAG/JUDGE L. PATRICK AULD. (Hicks, Samantha) |
| Motions Referred to MAG/JUDGE L. PATRICK AULD RE: #1 APPLICATION to Proceed IFP. (Sheets, Jamie) |
| TEXT ORDER and RECOMMENDATION (A) granting #1 Application to Proceed in District Court without Prepaying Fees or Costs for the limited purpose of (B) recommending that the Court dismiss this action without prejudice as frivolous under 28 U.S.C. s 1915(e)(2)(b)(i). In #2 Complaint, Plaintiff (proceeding pro se) purports to invoke this Court's diversity of citizenship subject matter jurisdiction; however, #2 Complaint does not contain any factual allegations as to the citizenship of the members of Defendant (identified in #2 Complaint as a limited liability company). Further, to the extent #2 Complaint asserts any state-law claim(s) of fraud, it lacks sufficient, non-conclusory, factual allegations to support any such claim(s). Finally, #2 Complaint describes Plaintiff as a "whistleblower" who wishes "to help the Public by helping the Federal Government take down a fraudulent Healthcare provider, claiming to be in relationship with Obamacare" in exchange for "25%" of the recovery. Taken together those allegations arguably reflect a desire by Plaintiff to pursue a federal false claims act (or "qui tam") cause of action; however, the United States Court of Appeals for the Fourth Circuit has ruled that pro se plaintiffs may not pursue such claims. See Wojcicki v. SCANA/SCE&G, 947 F.3d 240, 246 (4th Cir. 2020). All of these obvious defects in #2 Complaint render it frivolous and subject to dismissal under Section 1915(e)(2)(b)(i), effected without prejudice, given the jurisdictional and/or procedural nature of certain of the deficiencies and the possibility that Plaintiff could correct the insufficiency of the factual allegations pertaining to her state-law claim(s), if she elects to pursue such claim(s) in state court or can establish a basis for federal jurisdiction. Issued by MAG/JUDGE L. PATRICK AULD on 04/08/2021. (AULD, L.) |
| TEXT ORDER terminating #1 Application to Proceed in District Court without Prepaying Fees or Costs, in light of Text Recommendation of dismissal of this action. Issued by MAG/JUDGE L. PATRICK AULD on 04/08/2021. (AULD, L.) |
| Filing 4 Notice of Signed Pro Se Electronic Service Consent by BRITTANY TOLAND btolandvirgo@gmail.com. (Sheets, Jamie) |
| Filing 3 CIVIL COVER SHEET. (Sheets, Jamie) |
| Filing 2 COMPLAINT against ACEPLANS LLC, filed by BRITTANY TOLAND. (Sheets, Jamie) |
| Filing 1 APPLICATION to Proceed IFP by BRITTANY TOLAND. (Sheets, Jamie) |
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