United States District Court, D. Utah, Central Division
Nuffer Chief District Judge
REPORT AND RECOMMENDATION
J. Furse, Magistrate Judge
District Judge David Nuffer referred this case to Magistrate
Judge Evelyn J. Furse pursuant to 28 U.S.C. §
636(b)(1)(B). (ECF No. 4.) On October 25, 2017, the Court
granted Francois Coeur's (“Mr. Coeur” or
“Plaintiff”) application for leave to proceed
in forma pauperis and waived the prepayment of
filing fees pursuant to 28 U.S.C. § 1915 (“IFP
Statute”). (ECF No. 1.) Accordingly, the Court will
screen Mr. Coeur's action as required under the IFP
Statute. See, e.g., Lister v. Dep't of the
Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). In
addition, because Mr. Coeur proceedes pro se in this case,
the Court will construe his pleadings liberally. See,
e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187
(10th Cir. 2003).
noted above, Mr. Coeur proceedes pro se under the IFP
Statute, which requires the Court to “dismiss the case
at any time if the court determines . . . the action . . .
fails to state a claim on which relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(ii).
the Court may raise the lack of subject matter jurisdiction
sua sponte at any point in the proceedings.
McAlester v. United Air Lines, 851 F.2d 1249, 1252
(10th Cir. 1988). “A court lacking jurisdiction cannot
render judgment but must dismiss the cause at any stage of
the proceedings in which it becomes apparent that
jurisdiction is lacking.” Basso v. Utah Power &
Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Because
federal district courts have limited jurisdiction, a
presumption against federal jurisdiction exists, “and
the party invoking federal jurisdiction bears the burden of
proof.” Penteco Corp. Ltd. P'ship-1985A v.
Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir.
1991) (citation omitted).
may demonstrate subject matter jurisdiction in one of two
ways. First, in cases arising under federal question
jurisdiction, federal district courts have authority over
“civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331.
“The presence or absence of federal-question
jurisdiction is governed by the ‘well-pleaded complaint
rule,' which provides that federal jurisdiction exists
only when a federal question is presented on the face of the
plaintiff's properly pleaded complaint.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). Thus, a case meets the “arising under”
standard of § 1331 if the face of the complaint
demonstrates that federal law creates the plaintiff's
cause of action. See Franchise Tax Bd. v. Constr.
Laborers Vacation Tr., 463 U.S. 1, 27-28 (1983). Second,
federal district courts may exercise diversity jurisdiction
over “all civil actions where the matter in controversy
exceeds the sum or value of $75, 000 . . . and is between . .
. citizens of different States.” 28 U.S.C. § 1332.
“A case falls within the federal district court's
original diversity jurisdiction only if diversity of
citizenship among the parties is complete, i.e.,
only if there is no plaintiff and no defendant who are
citizens of the same State.” Wis. Dep't of
Corr. v. Schacht, 524 U.S. 381, 388 (1998) (quotations
and citations omitted). With these standards in mind, the
undersigned will now determine whether Mr. Coeur has
established that this Court has subject matter jurisdiction
over his case.
Coeur's handwriting in his Complaint is very difficult to
read. (ECF. No. 3.) However, based on the undersigned's
review of the legible portions of Mr. Coeur's Complaint,
he asserts that Defendants Linda Pearson, David Terry, and
Warren Terry (collectively, “Defendants”) (1)
sold property that should have been transferred to him as a
descendant of Alice Terry, (2) failed to notify the probate
court of his entitlement to the property, (3) should have
sold the property and transferred a portion of the proceeds
to him, and/or (4) did sell the property but failed to
transfer a portion of the proceeds to him. (Compl. 2-5, ECF
No. 3.) Mr. Coeur has asserted one cause of action for
“Theft.” (Id. at 4.)
Coeur's Complaint fails to identify any federal laws,
treaties, or constitutional issues that would grant the Court
federal question jurisdiction. Mr. Coeur did not check one of
the boxes on the Court's preprinted complaint form to
establish the basis for this Court's jurisdiction.
However, Mr. Coeur checked the box on the Civil Cover Sheet
accompanying his Complaint indicating that jurisdiction rests
on the United States Government's role as the plaintiff
in this action. (Civ. Cover Sheet, ECF No. 3-2.) This
assertion is patently false. Furthermore, Mr. Coeur bases his
single cause of action on a theory of theft between private
individuals. (Compl. 4, ECF No. 3.) District courts in the
Tenth Circuit generally regard theft as a state law claim.
See Sanborn v. Am. Lending Network, 506 F.Supp.2d
917, 924 (D. Utah 2007) (addressing theft as a state law
claim); see also Maez v. Springs Auto Grp., 268
F.R.D. 391, 394 (D. Colo. 2010) (discussing plaintiff's
state law claim for civil theft under Colorado law). Because
federal law did not create Mr. Coeur's cause of action,
he fails to demonstrate that this Court has federal question
jurisdiction pursuant to 28 U.S.C. § 1331.
Coeur also fails to establish that this Court possesses
diversity jurisdiction over his action. Mr. Coeur meets the
amount in controversy requirement under 28 U.S.C. § 1332
as he seeks “punitive damages and attorney fees and
court costs in the amount of 547, 000, 000 dollars and weekly
payments of 2, 000 dollars.” (Compl. 6, E C F . No. 3.)
However, he has not alleged complete diversity among the
parties; rather, he states that he and all Defendants are
citizens of Utah. (Id. 1-2.) As such, this Court
also lacks diversity jurisdiction.
claims “involving probate or the administration of a
decedent's estate fall outside the scope of federal
jurisdiction.” Myers v. Hummel, No.
14-cv-00446-BNB, 2014 WL 5849405, *2 (D. Colo. Nov. 12, 2014)
(citing Markham v. Allen, 326 U.S. 490, 494 (1946))
(unpublished). That said, federal courts may “entertain
actions against administrators, executors, or other claimants
in which plaintiffs seek to establish claims against an
estate, ” McKibben v. Chubb, 840 F.2d 1525,
1529 (10th Cir. 1988) (quoting 13B C. Wright, A. Miller &
E. Cooper, Fed. Practice & Proc., § 3610,
at 484 (1984)), provided “the federal court does not
interfere with the probate proceedings or assume general
jurisdiction of the probate or control of the property in the
custody of the state court.” Markham, 326 U.S.
at 494. However, even assuming Mr. Coeur's action does
not interfere with probate proceedings, this Court still
lacks jurisdiction. Federal jurisdiction over probate-related
matters depends on the application of state law, and this
Court will only have jurisdiction if complete diversity
exists between the parties. See McKibben, 840 F.2d
of a pro se complaint for failure to state a claim is proper
only where it is obvious that the plaintiff cannot prevail on
the facts he has alleged and it would be futile to give him
an opportunity to amend.” Kay v. Bemis, 500
F.3d 1214, 1217 (10th Cir. 2007) (quoting Curley v.
Perry, 246 F.3d 1278, 1281 (10th Cir. 2001)). The
undersigned concludes that permitting Mr. Coeur to file an
amended complaint would prove futile because he cannot allege
any facts that would give this court subject matter
jurisdiction. See Anderson v. Merrill Lynch Pierce Fenner
& Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 2008)
(“A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal.” (quoting
Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir.