Duguay v. RBS Citizens Financial Group et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Danielle M. Duguay
v. 	Case No. 19-cv-1103-LM
RBS Citizens Financial Group
Dennis Cote
REPORT AND RECOMMENDATION
Plaintiff Danielle M. Duguay, appearing pro se, has sued
RBS Citizens Financial Group (“RBS Citizens”) and RBS Citizens
loan officer Dennis Cote, alleging fraudulent conduct in
connection with her 2009 mortgage loan.1 	See Complaint (Doc. No.
1). 	The complaint is before this magistrate judge for
preliminary review, pursuant to 28 U.S.C. § 1915(e)(2) and LR
4.3(d)(1). 	For the reasons that follow, the district judge
should dismiss this lawsuit because the court lacks subject
matter jurisdiction.
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings, like Duguay’s, which are filed in forma pauperis.
See LR 4.3(d). 	The magistrate judge may recommend to the
1 Plaintiff originally named RBS Citizens general counsel Stephen
T. Gannon as a defendant. He was subsequently dismissed by
agreement of the parties (Doc. No. 3).
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district judge that one or more claims be dismissed if, among
other things, the court lacks jurisdiction, a defendant is
immune from the relief sought, or the complaint fails to state a
claim upon which relief may be granted. 	See 28 U.S.C. §
1915(e)(2); LR 4.3(d). 	In conducting its preliminary review,
the court construes pro se complaints liberally. 	See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	The complaint
must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). 	The court treats as true all
well-pleaded factual allegations, and construes reasonable
inferences in plaintiff’s favor. 	See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Background2
Plaintiff obtained a mortgage loan from RBS Citizens in
2009. 	She asserts that Cote illegally transferred the loan to
an investment rather than the mortgage company and that her
mortgage payments were never applied to the mortgage. 	In July
2017, Duguay realized that she had been the victim of wrongful
2 The facts recited in this section are drawn from the complaint
(Doc. No. 1) and documents attached thereto. 	See Foley v. Wells
Fargo Bank, N.A., 772 F.3d 63, 72 (1st Cir. 2014).
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eviction, foreclosure and loan fraud as a result of RBS
Citizens’ and Cote’s actions.3 	Plaintiff seeks compensatory and
punitive damages.
Analysis
Construed liberally, plaintiff alleges that she is a victim
of common law fraud.4 	Before turning to the substantive
sufficiency of her allegations, however, the court must assess
whether it has subject matter jurisdiction over plaintiff’s
suit. 	See Acosta-Ramirez v. Banco Popular de P.R., 712 F.3d 14,
18 (1st Cir. 2013) (“Federal courts are obliged to resolve
questions pertaining to subject-matter jurisdiction before
addressing the merits of a case.”).
3 According to the public record, plaintiff’s home was sold at
foreclosure on June 15, 2015 and transferred by foreclosure deed
on July 23, 2015. 	Registry of Deeds, Carroll County, New
Hampshire, Book 3215, Page 163. 	See Nationstar Mortg. LLC v.
Galvin, Civ. No. 4:17-cv-40123-DHH, 2019 WL 1959862 , at *4 n.2
(D. Mass. May 2, 2019) (taking judicial notice of property
conveyances recorded in the local registry of deeds).
4 In her complaint, plaintiff alleges that the defendants have
violated New Hampshire and federal criminal statutes. 	As these
laws do not provide a private right of action, the court
construes the allegations in her complaint according to common
law principles. 	See Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973) (“a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another”).
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A. 	Subject Matter Jurisdiction
“‘Federal courts are courts of limited jurisdiction,’
possessing ‘only that power authorized by Constitution and
statute.’” 	Gun v. Minton, 568 U.S. 251, 256 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). 	The plaintiff has the burden to establish the court's
jurisdiction. 	Calderón–Serra v. Wilmington Trust Co., 715 F.3d
14, 17 (1st Cir. 2013).
To invoke this court's subject matter jurisdiction,
plaintiff must allege either that this action raises a federal
question, in that the cause of action arises under federal law,
or that this court has diversity jurisdiction over the matter.
See 28 U.S.C. § 1331 (federal question) and § 1332 (diversity).
To establish diversity jurisdiction, plaintiff must assert that
the parties are citizens of different states, see id. at §
1332(a)(1), and that the amount in controversy in this action
exceeds $75,000. 	See id. at § 1332(b).
1. 	Federal Question Jurisdiction
Plaintiff relies on federal criminal statutes -- 18 U.S.C.
§§ 1001 et seq. – as a basis for federal question jurisdiction.
As previously noted, however, these statutes do not create a
basis for a federal court’s subject matter jurisdiction over a
civil lawsuit. 	See supra, n.4.
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2. 	Diversity Jurisdiction
To establish diversity jurisdiction, plaintiff must show
that the parties are citizens of different states and that the
amount in controversy is more than $75,000. 	See 28 U.S.C. §
1332. 	“[D]iversity jurisdiction requires ‘complete diversity of
citizenship as between all plaintiffs and all defendants.’ 	This
means that diversity jurisdiction does not exist where any
plaintiff is a citizen of the same state as any defendant.”
Alvarez–Torres v. Ryder Mem'l Hosp., Inc., 582 F.3d 47, 53–54
(1st Cir. 2009) (citations omitted). 	Here, the face of the
complaint indicates that both plaintiff and defendant Cote are
New Hampshire citizens. 	These allegations fail to satisfy the
requirement of diversity jurisdiction.
Conclusion
For the reasons set forth herein, the undersigned
recommends that the district judge assigned to this case dismiss
it for lack of subject matter jurisdiction.5
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
5 The court also notes that the acts complained of in the
complaint took place in 2009 and 2015. 	This suit was filed in
October 2019, well outside of New Hampshire’s three-year statute
of limitations. See N.H. Rev. Stat. Ann. § 508:4, I (providing
three-year statute of limitations for all personal actions).
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R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file objections within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 13, 2019
cc: 	Danielle M. Duguay, pro se
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