United States District Court, E.D. Michigan, Southern Division
ROY A. DAY, Plaintiff,
ONSTAR, LLC, et al., Defendants.
Honorable Terrence G. Berg
REPORT AND RECOMMENDATION TO SUA SPONTE DISMISS
COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION AND
IMPROPER VENUE, AND TO ENJOIN DAY FROM FILING LAWSUITS IN
THIS DISTRICT WITHOUT LEAVE OF COURT
ELIZABETH A. STAFFORD United States Magistrate Judge.
Roy A. Day, a Florida resident who is proceeding pro
se, sues OnStar LLC, its director of retail sales (Kent
Brodsho)-both of Michigan-and various Florida-based
defendants. [ECF No. 9]. He alleges that this Court has federal
question jurisdiction arising from his allegation that
defendants violated his Fourth Amendment rights, and
diversity jurisdiction. [ECF No. 9, PageID.42-43]. The
Honorable Terrence G. Berg referred the case to the
undersigned for all pretrial matters under 28 U.S.C. §
636(b)(1). [ECF No. 7].
allowed by Federal Rule of Civil Procedure 15(a)(1), Day
filed an amended complaint as a matter of course. [ECF No.
9]. His second amended complaint, [ECF No. 19], did not
comply with Rule 15(a)(1) because the rule allows an amended
complaint to be filed as a matter of course only
“once.” Rule 15(a)(1). Synthes USA Sales,
Inc. v. Taylor, No. 3:10-1102, 2012 WL 928190, at *1
(M.D. Tenn. Mar. 19, 2012) (interpreting Rule 15(a)(1) as
allowing only one amendment of right). Nor did Day file for
leave to file his second amended complaint, as allowed by
Rule 15(a)(2). So Day's first amended complaint is the
operative complaint. Even so, the analysis below applies
equally to the second amended complaint.
amended complaint-one 71-pages and the other 85
pages-comports with the requirements that the claims be
“short and plain” and that each allegation
“be simple, concise and direct.” Fed.R.Civ.P.
8(a) & (d)(1). And his claims are disparate. He alleges
that OnStar and Brodsho conspired with members of Florida law
enforcement to track his car, [ECF No. 9, PageID.43; ECF No.
19, PageID.283], and that he was wrongly removed from a
library, [ECF No. 9, PageID. 55; ECF No. 19, PageID.296]. Day
alleges that Defendant Chad Chronister, a Florida Sheriff, is
a representative of all law enforcement in all 50 states
“who orchestrate the ‘robbing and raping' of
the TAXPAYERS as co-conspirators with other government
employees, and elected officials, pursuant to the the
[sic] homeless, and the drug-crowd, including drug
dealers, and the ‘digital-morons,' and the
derelicts, and the alcoholics, and casino gamblers, that have
turned the libraries into a
(‘LCTBHSHRO').” [ECF No. 9, PageID.41; ECF
No. 19, PageID.301]. The Court finds it difficult to discern
Day's claims or their legal underpinnings.
fundamentally, the Court questioned whether it has subject
matter jurisdiction over Day's claims and whether venue
is improper in this district. For those reasons, the Court
ordered Day to show cause why this action should not be
dismissed, and to address specifically:
. The basis for federal question
jurisdiction against OnStar and Brodsho, as they are not
government actors. See, e.g., Flagg Brothers
Inc. v. Brooks, 436 U.S. 149, 156 (1978) (“[M]ost
rights secured by the Constitution are protected only against
infringement by governments”);
. The validity of Day's claim for
diversity jurisdiction, when he and several defendants reside
in Florida. See, e.g.,, Evanston Ins. Co. v. Hous. Auth.
of Somerset, 867 F.3d 653, 656 (6th Cir. 2017) (holding
a federal court has diversity jurisdiction “only if
each of the plaintiffs comes from a different State from each
of the defendants”);
. And, even if Day can establish subject
matter jurisdiction for OnStar and Brodsho, why this action
should not be dismissed sua sponte for improper
venue, as all the events alleged in the amended complaint
[ECF No. 9] took place in Florida. See e.g., Davis v.
Reagan, 872 F.2d 1025 (6th Cir. 1989) (affirming
court's sua sponte dismissal before service of
complaint on defendants for improper venue, since defendants
resided in, and claims arose in a different jurisdiction than
where plaintiff brought the action).
[ECF No. 18].
response mainly accused the undersigned of being biased, of
conspiring with the defendants and acting as their attorney.
[ECF No. 23]. The Court has denied a motion to disqualify the
undersigned based on the same allegations. [ECF No. 25]. The
Court also finds that subject matter jurisdiction does not
exist, and that venue here is improper. Finally, the Court
recommends that Day be permanently enjoined from filing
lawsuits in this district without leave of court.
Subject Matter Jurisdiction
plaintiff must show that the court has “original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States, ”
or that jurisdiction is proper because of the diversity of
citizenship of the parties. 28 U.S.C. §§ 1331,
1332. When a court has subject matter jurisdiction under
either Sections 1331 or 1332, it may exercise supplemental
jurisdiction over related state claims. 28 U.S.C. §
1367. But “[i]f the court dismisses plaintiff's
federal claims pursuant to Rule 12(b)(1), then supplemental
jurisdiction can never exist.” Musson Theatrical,
Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1255 (6th Cir.
1996). “It ought to be obvious that because federal
subject matter jurisdiction is completely lacking there is
nothing upon which to exercise supplemental jurisdiction
under 28 U.S.C. § 1367.” Ahearn v. Charter
Twp. of Bloomfield, 100 F.3d 451, 456 (6th Cir. 1996)
(citation and internal quotation marks omitted).
federal court has diversity jurisdiction “only if each
of the plaintiffs comes from a different State from each of
the defendants.” Evanston Ins. Co. v. Hous. Auth.
of Somerset, 867 F.3d 653, 656 (6th Cir. 2017). Day
resides in Florida, as do all the individual defendants
except Brodsho. [ECF No. 9, PageID.39-40, 59-69]. Thus,
diversity jurisdiction does not exist.
Federal Question Jurisdiction
plaintiff properly invokes § 1331 jurisdiction when she
pleads a colorable claim ‘arising under' the
Constitution or laws of the United States.” Arbaugh
v. Y&H Corp., 546 U.S. 500, 513 (2006). A claim is
not colorable if it is “wholly insubstantial and
frivolous.” Id., at 513, n.10 (internal
citation and quotation marks omitted). Here, Day makes no
colorable claim against OnStar and Brodsho that arises under
the Constitution or federal laws.
alleges that OnStar and Brodsho conspired with members of law
enforcement in Florida to deny his Fourth Amendment rights by
stealing his GPS data. [ECF No. 9, PageID.43-58; ECF No. 19,
PageID.283, 287-97]. He also invokes fraud statutes of
“various States, including but not limited to,
Michigan, and Florida, ” and alleges that OnStar and
other defendants have sought to conceal fraud. [ECF No. 9,
PageID.72, 94; ECF No. 19, PageID.318, 342-44].
correctly notes that a private entity who conspires with a
state actor may be liable under § 1983. Memphis,
Tennessee Area Local, Am. Postal Workers Union, AFL-CIO v.
City of Memphis, 361 F.3d 898, 905 (6th Cir. 2004).
“For such a claim to survive a motion to dismiss, a
plaintiff must allege: (i) the existence of a single plan;
(ii) that the co-conspirators shared in a general
conspiratorial objective; and (iii) an overt act in
furtherance of the conspiracy that caused injury to the
plaintiff.” Harris v. Goins, 156 F.Supp.3d
857, 866 (E.D. Ky. 2015). “It is well-settled that
conspiracy claims must be pled with some degree of
specificity and that vague and conclusory allegations
unsupported by material facts will not be sufficient to state
such a claim under § 1983.” Gutierrez v.
Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). In
Gutierrez, the court found insufficient the
plaintiff's conclusory claims that “his job
termination was the ultimate result of the conspiracy of
Defendants to punish Plaintiff for his refusal to whitewash
his investigation of city contracts” and that
“defendants conspired against Plaintiff to unlawfully
deprive him of his employment, his good name and reputation
as punishment for Plaintiff's continued refusal to
whitewash city contracts.” Id. (internal
quotation marks omitted).
their length, neither of Day's highly-repetitive amended
complaints includes the necessary specificity. As in
Gutierrez, he makes conclusory allegations that are
unsupported by material facts. In his first amended
complaint, Day alleges that Sheriff Chronister “was the
‘principal co-conspirator,' and agents, and
servants, and co-conspirators, and employees . . . in the
illegal search and seizure of ‘data' on
[OnStar's] ‘GPS Tracking' network in reference
to Plaintiff's 2016 Chevrolet Spark 1LT.” [ECF No.
9, PageID.40]. He alleges that defendants illegally searched
and seized his data. [Id., PageID.42]. Day states
that Chronister, OnStar and Brodsho “carried out, a
PREMEDITATED AND PREARRANGED plan, scheme
and practice which operated to deny Plaintiff his
‘basic rights, and Constitutional rights, and
subsequently, steal ‘data' on Plaintiff's
vehicle using Defendant OnStar's ‘GPS'
‘tracking' system to follow the
‘location' of Plaintiff's vehicle'”
to harass and intimidate him. [Id., PageID.43;
see also PageID.48-50].
then appears to connect this alleged conspiracy with an
effort to entrap him during his morning exercise: “([A]
female … fat … was sent to entrap and harass
Plaintiff, and a fat and … male to harass and entrap
Plaintiff - all at the TAXPAYERS' expense and cost) and
at Plaintiff's Sunday morning ‘nirvana park
location.'” [Id., PageID.43]. He asserts
that Chronister solicited OnStar and its agents to track his
(Day's) vehicle even though the facts did not warrant
such an action and there was no probable cause.
[Id., PageID.47, 53-54]. According to Day, the
conspiracy was orchestrated to railroad him and cover up
fraud at the Austin Davis Library. [Id.,
allegations against OnStar and Brodsho are insufficient; he
provides no material facts to support his conclusions that
those defendants participated in a conspiracy or knew that
Day's car was being tracked illegally. These
insufficiencies remain in Day's second amended complaint.
[See ECF No. 19, PageID.295-96, 300-01]. And both amended
complaints are mostly screeds against the “robbing and
raping” of ...