United States District Court, W.D. Virginia, Harrisonburg Division
CECILE M. LESCS, Plaintiff,
MR. BURKHARDT, et al.. Defendants.
Michael F. Urbanski Chief United States District Judge
pro se? plaintiff Cecile M. Lescs filed
the instant Complaint (the "Federal Complaint"),
ECF No. 1. In the accompanying order entered with this
memorandum opinion, the court will grant Lescs leave to
proceed in forma pauperis due to her indigence.
After reviewing the Federal Complaint, the court concludes
that the action must be dismissed for lack of jurisdiction,
pursuant to 28 U.S.C. §§ 1332 and
28 U.S.C. § 1915, district courts have a duty to screen
initial filings and dismiss a complaint filed in forma
pauperis "at any time if the court determines
that... the action ... is frivolous or malicious ... [or]
fails to state a claim on which relief may be granted."
28 U.S.C. § 1915(e)(2)(B)(i)-(ii); see also Eriline
Co. S.A. v. Johnson, 440 F.3d 648, 656 (4th Cir. 2006)
(internal quotations omitted) ("[Section] 1915 permits
district courts to independently assess the merits of in
forma pauperis complaints, and to exclude suits that
have no arguable basis in law or fact.").
court construes pro se complaints liberally,
imposing "less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus. 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble. 429
U.S. 97, 104-05 (1976)). Nonetheless, "a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim of relief that is plausible on its
face.'" Ashcroft v. Iqbal 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly. 550 U.S.
544, 570 (2007), From the face of the Complaint, it is clear
the parties lack complete diversity and the court cannot
exercise subject matter over the action.
Federal Complaint does not itself allege a cause of action.
Instead, the Federal Complaint merely recites paragraphs
purporting to show that it was timely filed and that venue is
proper in this district. The Federal Complaint does, however,
incorporate by reference a state complaint (the "State
Complaint" or "State Compl."), ECF No. 2-3,
which contains the causes of action that Lescs intends to
prosecute. A review of the State Complaint reveals three
causes of action: negligence, gross negligence, and an
intentional tort. State Compl. ¶¶ 29-34. Lescs
seeks punitive damages for the latter two claims.
Id. ¶¶ 31-34.
claims arise out of state law. See Nuckoles v. F.W.
Woolworth Co.. 372 F.2d 286, 286 (4th Cir. 1967);
Adams v. NaphCare. Inc.. 240 F.Supp.3d 438, 443-14
(E.D. Va. 2017). Because the Federal and State Complaints do
not raise federal claims, the court has jurisdiction over
this case only if it can exercise diversity jurisdiction
under 28 U.S.C. § 1332. Under the well-established
complete-diversity requirements, the court may exercise
diversity jurisdiction "only to cases in which the
citizenship of each plaintiff is diverse from the citizenship
of each defendant." Caterpillar Inc. v. Lewis.
519 U.S. 61, 68 (1996).
pleads that she is a resident of Winchester, Virginia. State
Compl. ¶ 1. Lescs names a multitude of defendants. See
id ¶¶ 2-11. Three of the named defendants are
Florida persons or business entities. Id. ¶¶
2-4. Lescs, however, also names: (1) the Virginia State
Police, a governmental entity of the Commonwealth of
Virginia, id ¶¶ 5-6; (2) Trooper Joey P. Yokiel,
Virginia state trooper, id ¶ 7; (3) First Sergeant
Blacklock, a Virginia state trooper, id ¶ 8; and (4)
former Virginia governor Terry McAuliffe,  Id.
¶ 11 (collectively, the 'Virginia Defendants").
pled, McAuliffe is a citizen of Virginia, and while Lescs
does not plead the citizenships of Yokiel and Blacklock, it
is more likely than not that there are also Virginia
Citizens. As both Lescs pleads that both Lescs and McAuliffe
are Virginia citizens, complete diversity does not exist and
the court cannot exercise diversity jurisdiction over the
Federal Complaint. See Kokkonen v. Guardian Life Ins. Co.
of Am.. 511 U.S. 375, 377 (1994) (citations omitted)
("[The federal courts] possess only that power
authorized by [the United States] Constitution or a statute,
which is not to be expanded by judicial decree. It is to be
presumed that a cause lies outside this limited jurisdiction
and the burden of establishing the contrary rests upon the
party asserting jurisdiction.")
the court will dismiss Mills' complaint without prejudice
pursuant to 28 U.S.C. §§ 1332 and 1915(e)(2)(B)(ii)
for lack of jurisdiction.
Clerk is directed to send copies of this Memorandum Opinion
and the accompanying Order to plaintiff.
 It is not clear from the pleadings
whether the business entities are corporations, limited
liability entities, or something else. Because die court
determines diat it cannot exercise diversity jurisdiction on
odier grounds, die court need not delve into the citizenship
of these business entities.
McAuliffe was governor on July 11,
2016, when Lescs filed the State Complaint. Governor Ralph
Northam succeeded as governor of Virginia on January 13,
2018, six days before Lescs filed the Complaint. See
Gregory S. Schneider et al., A pragmatist in partisan
times: Ralph Northam becomes Virginia's 73rd
governor. Wash. Post, Jan. 13, 2018,