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Day v. Onstar, LLC

United States District Court, E.D. Michigan, Southern Division

July 3, 2019

ROY A. DAY, Plaintiff,
v.
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.

         I. Introduction

         Plaintiff 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].[1] 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].

         II. Background

         As 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.

         Neither 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 ‘LOITERING-CESSPOOL-TAXPAYER-BLACKHOLE-SINKHOLE-RIP-OFF' (‘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.

         Most 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].

         Day 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.

         III. Analysis

         A. Subject Matter Jurisdiction

         A 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).

         1. Diversity Jurisdiction

         A 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.

         2. Federal Question Jurisdiction

         “A 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.

         Day 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].

         Day 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).

         Despite 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].

         Day 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., PageID.47-48, 54-55].

         Day's 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 ...


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