Report & Recommendation (“R&R”) that it be dismissed without prejudice
- Date
- 2022-06-06
Summary
An order of the U.S. District Court for the Northern District of Georgia in Raissa Djuissi Kengne v. ID.me, Inc., Civil Action No. 1:22-CV-2237-SEG, filed October 24, 2022 as Document 10 and signed by United States District Judge Sarah E. Geraghty. It addresses the magistrate judge's Final Report & Recommendation that the case be dismissed without prejudice, the plaintiff's objection, and her Application for Appellate Review of the June 8, 2022 order denying in forma pauperis status. The court grants the application in part based on financial information supplied later, grants leave to proceed in forma pauperis, and deems that objection moot. It rejects the asserted federal question bases under 42 U.S.C. § 1104, 26 U.S.C. § 3301 and the Fourteenth Amendment, finds diversity jurisdiction not alleged, adopts the R&R on jurisdiction and dismisses the complaint without prejudice.
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Case 1:22-cv-02237-SEG Document 10 Filed 10/24/22 Page 1 of 19
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RAISSA DJUISSI KENGNE,
Plaintiff, CIVIL ACTION NO.
v. 1:22-CV-2237-SEG
ID.ME, INC.,
Defendant.
ORDER
This case is before the Court on the Magistrate Judge’s Final
Report & Recommendation (“R&R”) that it be dismissed without prejudice.
(Doc. 7). Plaintiff Raissa Djuissi Kengne has filed an objection to the R&R.
(Doc. 9.) She has also filed a document entitled “Application for Appellate
Review.” (Doc. 5.)
I. Background
Ms. Kengne filed a complaint on June 6, 2022, against ID.me, Inc.
(“ID.me”), a company that provides identification verification services to the
Georgia Department of Labor.1 (Doc. 1-1, Doc. 6.) She contemporaneously
1 The docket of the case includes a second defendant, Cogency Global, Inc.
This entity is not listed in the “Parties” section of the complaint as a
defendant, nor does Ms. Kengne direct any claims against it. In the “Parties”
section of her complaint, Plaintiff identifies Cogency Global, Inc. as the
registered agent of ID.me, Inc. (Doc. 6 at 2.) The Clerk is therefore
Case 1:22-cv-02237-SEG Document 10 Filed 10/24/22 Page 2 of 19
filed an affidavit and application in support of her request to proceed with the
case in forma pauperis. (Doc. 1.) On that application, she states that her
average monthly income for the past twelve months is $7,500, and that she
owns real estate (a condominium, lot of land, and an abandoned house)
valued at $755,000. (Id. at 2, 3.) The Magistrate Judge determined that
“Plaintiff’s allegations of poverty are not fully supported by the record. With
an annual income of approximately $90,000, Plaintiff is well above the
poverty level.” (Doc. 2 at 2.) On June 8, 2022, the Magistrate Judge denied
Ms. Kengne’s request to proceed in forma pauperis, and informed her that, if
she wished to proceed with the case, she should pay the $402 case initiation
fee by June 29, 2022.
Ms. Kengne did not pay the case initiation fee by this deadline.
Instead, she filed an “Application for Appellate Review” on July 5, 2022.
(Doc. 5.) In this document, she seeks “an order granting [her] an appeal” of
the Magistrate Judge’s June 8, 2022, order. (Id. at 6.) Plaintiff attached
approximately 650 pages of exhibits in support of her request. (Doc. 5-1, 5-2,
DIRECTED to correct the docket to remove Cogency Global, Inc. as a
defendant.
2
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5-3.) The Court construes this document as an appeal of the Magistrate
Judge’s June 8, 2022, order.2
On August 5, 2022, the Magistrate Judge issued a Final R&R
recommending this case be closed because Ms. Kengne has not paid the $402
case initiation fee. (Doc. 7.) The Magistrate Judge states that, in addition to
not paying the required fee, Ms. Kengne “has also failed to establish that this
Court has subject matter jurisdiction over her claims.” (Id. at 5.) Ms.
Kengne filed an objection to the R&R. (Doc. 9.) She states that her claims
are based on federal question jurisdiction, falling under the Unemployment
Trust Fund (42 U.S.C.§ 1104), the Federal Unemployment Tax Act (26 U.S.C.
§ 3301), and the Fourteenth Amendment of the U.S. Constitution. (Id. at 17.)
As for her request for leave to proceed in forma pauperis, Ms. Kegne
states that the Magistrate Judge “chose to highlight elements that would
support a dismissal and ignore the full picture to represent the fair financial
situation of Plaintiff.” (Id. at 10.) She refers the Court to her “Application for
Appellate Review” (Doc. 5) in which she attempts to clarify her financial
situation. She also asserts that she has not failed to comply with the
2 Ms. Kengne is proceeding pro se.
The Court liberally construes pro se
pleadings, Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998).
3
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Magistrate Judge’s order because she filed timely motions for
reconsideration3 and to appeal. (Doc. 9 at 17.)
II. Legal Standards
A. Review of the Magistrate Judge’s R&R
To challenge the findings and recommendations of the Magistrate
Judge, a party must file with the Clerk of Court written objections which
“shall specifically identify the portions of the proposed findings and
recommendation to which objection is made and the specific basis of the
objection.” Heath v. Jones, 863 F.2d 815, 822 (11th Cir. 1989). If timely and
proper objections are filed, the district court “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). The
district judge must “give fresh consideration to those issues to which specific
objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga.,
896 F.2d 507, 512 (11th Cir. 1990). The district judge reviews legal
conclusions de novo, even in the absence of an objection. See Cooper-Houston
3 No motion for reconsideration has been filed in this case.Ms. Kengne filed
a motion for reconsideration in another case she has before this Court, Civil
Action No. 1:22-cv-2297-SEG-CMS, Kengne v. Georgia Power Company,
which she attached as Exhibit 9A to her “Application for Appellate Review.”
(Doc. 5.)
4
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v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994). “[T]he district court will
review those portions of the R&R that are not objected [to] under a clearly
erroneous standard.” Liberty Am. Ins. Group, Inc. v. WestPoint Underwriters,
L.L.C., 199 F.Supp.2d 1271, 1276 (M.D. Fla. 2001). After conducting a
careful review of the findings and recommendations, a district judge may
accept, reject, or modify the Magistrate Judge’s R&R. 28 U.S.C. § 636(b)(1);
United States v. Powell, 628 F.3d 1254, 1256 (11th Cir. 2010).
B. Appeal of the Magistrate Judge’s Order
Federal Rule of Civil Procedure 72(a) states that a party may file
objections to a Magistrate Judge’s non-dispositive order,4 and "[t]he district
judge in the case must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to law." Clear error
is a "highly deferential standard of review," and a finding is clearly erroneous
"when although there is evidence to support it, the reviewing court on the
entire evidence is left with definite and firm conviction that a mistake has
been committed." Holton v. City of Thomasville Sch Dist., 425 F.3d 1325,
1350 (11th Cir. 2005).
4 The Magistrate Judge’s June 8, 2022, order was not dispositive of Ms.
Kengne’s claims. (Doc. 2 at 3.)
5
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C. Screening Pursuant to 28 U.S.C. § 1915
In cases brought in forma pauperis (meaning, without prepayment of
the filing fee), the Court must conduct an initial screening known as a
frivolity review. The Court must dismiss a case during this initial screening
if it “determines that . . . the action or appeal (i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B).
A claim is “frivolous” under 28 U.S.C. § 1915(e)(2)(B) when “it lacks an
arguable basis either in law or in fact,” Neitzke v. Williams, 490 U.S. 319, 325
(1989), or when it “has little or no chance of success” — for example, when it
appears “from the face of the complaint that the factual allegations are
clearly baseless[,] the legal theories are indisputably meritless,” or “the
defendant’s absolute immunity justifies dismissal before service of process.”
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (internal quotations
omitted). To have some chance of success, a complaint must “contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
During the frivolity review, the Court’s authority to “‘pierce the veil of
the complaint’s factual allegations’ means that a court is not bound, as it
6
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usually is when making a determination based solely on the pleadings, to
accept without question the truth of the plaintiff’s allegations.” Denton v.
Hernandez, 504 U.S. 25, 32 (1992). If the alleged facts are “fanciful,”
“fantastic,” and “delusional,” the court may dismiss the complaint. Id. at
32-33 (citations omitted). And “a finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the irrational or the
wholly incredible.” Id. at 33. Further, a complaint fails to state a claim upon
which relief can be granted when it does not include “enough factual matter
(taken as true)” to “give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-56 (2007). A claim is also deemed “frivolous” under 28 U.S.C. § 1915
where there is no subject matter jurisdiction. Davis v. Ryan Oaks Apartment,
357 F. App’x 237, 238-39 (11th Cir. 2009); see also Arbaugh v. Y&H Corp.,
546 U.S. 500, 514 (2006) (“[W]hen a federal court concludes that it lacks
subject-matter jurisdiction, the court must dismiss the complaint in its
entirety.”)
7
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III. Discussion
A. Appeal of the Magistrate Judge’s June 8, 2022, order
denying Ms. Kengne’s request to proceed in forma
pauperis
When considering an affidavit in support of a request to proceed in
forma pauperis, “[t]he only determination to be made by the court . . . is
whether the statements in the affidavit satisfy the requirement of poverty.”
Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004). A
litigant need not be “absolutely destitute” to qualify for in forma pauperis
status, Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 338–40 (1948).
However, an applicant must show that he is unable “to pay for the court fees
and costs, and to support and provide necessities for himself and his
dependents.” Martinez at 1307 (11th Cir. 2004).
Ms. Kengne acknowledges that the financial affidavit she submitted on
June 6, 2022, is accurate, but she has since provided further information to
clarify her financial situation. In her appeal of the Magistrate Judge’s order,
she states that she has separated from her job. She attaches a notice from
the Georgia Department of Labor dated November 18, 2021, showing that her
“period of last employment” was September 3, 2019, to November 18, 2021.
(Doc. 5-3 at 11-12.) She also provides the Court with two foreclosure notices,
one concerning the vacant land lot and the other concerning the abandoned
8
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house. (Id. at 13-22.) Additionally, a letter she has attached from her bank
indicates that, as of March 3, 2022, her “Delta Community Credit Union
Checking and/or Savings Account remains in negative status.” (Id. at 31.)
The foregoing information was not presented to the Magistrate Judge
before she issued her June 8, 2022, order. Certainly, that order was not
clearly erroneous or contrary to law. However, the supplemental financial
information provided by Ms. Kengne after the June 22 order sufficiently
supports her claim of indigency. Ms. Kengne’s “Application for Appellate
Review” is therefore GRANTED IN PART AND DENIED IN PART.5 (Doc. 5.)
The Court grants her leave to proceed in this case in forma pauperis.
B. The Magistrate Judge’s R&R and Ms. Kengne’s objection
Because the Court has granted Ms. Kengne leave to proceed in forma
pauperis, her objection to the R&R on that issue is deemed moot. The Court
therefore focuses on Ms. Kegne’s objection to the Magistrate Judge’s
recommendation that the case be dismissed without prejudice for lack of
subject matter jurisdiction.
5 As part of her requested relief, Ms. Kegnes asks the Court to “hold that the
[Magistrate] Court erred in denying the Motion to Proceed in Forma
Pauperis.” (Doc. 5 at 33.) As explained above, the Magistrate Judge did not
err, based on the information that was before her. The Court therefore
DENIES this part of Ms. Kegne’s “Application for Appellate Review.”
9
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The Magistrate Judge conducted a preliminary screening of the
complaint and determined that subject matter jurisdiction was lacking.
Specifically, the Magistrate Judge determined that there are no allegations in
the complaint that assert federal question jurisdiction, and “it is also doubtful
that diversity jurisdiction exists” because the amount in controversy
requirement may not be satisfied and the complaint indicates that Ms.
Kengne and the defendant are both citizens of Georgia. (Doc. 7 at 4-5.)
1. Federal Question Jurisdiction
A federal question exists when a civil action arises “under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
Generally, “a case ‘arises under’ federal law if federal law creates the cause of
action.” Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir. 1998).
To determine whether a complaint raises a federal question, the Court
examines the allegations in the complaint to discern whether the cause of
action is created by federal law. See Tamiami Partners, Ltd. v. Miccosukee
Tribe of Indians of Fla., 999 F.2d 503, 507 (11th Cir. 1993); see also
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
In her objection to the R&R, Ms. Kengne asserts that there are three
federal question causes of action: the Unemployment Trust Fund (42 U.S.C.§
1104), the Federal Unemployment Tax Act (26 U.S.C. § 3301), and the
10
Case 1:22-cv-02237-SEG Document 10 Filed 10/24/22 Page 11 of 19
Fourteenth Amendment of the U.S. Constitution. (Doc. 9 at 17.)6 The Court
examines each of these alleged bases for federal question jurisdiction in turn.
a. Unemployment Trust Fund (42 U.S.C. § 1104)
The Unemployment Trust Fund was established as part of the Social
Security Act, 42 U.S.C. § 1104. The Fund “receives and holds” moneys
deposited by state agencies from state unemployment funds. § 1104(a). “The
Fund [is] invested as a single fund, but the Secretary of the Treasury . . .
maintain[s] a separate book account for each State agency.” § 1104(e). The
Secretary is further “authorized and directed to pay out of the Fund to any
State agency such amount as it may duly requisition, not exceeding the
amount standing to the account of such State agency at the time of such
payment.” § 1104(f). The Unemployment Trust Fund does not provide for a
private right of action. Because Ms. Kengne cannot bring a claim as a private
litigant pursuant to the Fund, her reliance on this statute to establish federal
question jurisdiction is improper.
6 Ms. Kengne also references “O.C.G.A. § 34-8-45 Supplemental unemployment
benefits.” This is a state statue which does not confer federal question
jurisdiction.
11
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b. Federal Unemployment Tax Act (26 U.S.C. § 3301)
In the Federal Unemployment Tax Act, 26 U.S.C. § 3301, et seq.,
“Congress has authorized a cooperative federal-state scheme to provide
benefits to unemployed workers. The Act requires employers to pay an excise
tax on wages paid to employees in ‘covered’ employment, but entitles them to
a credit of up to 90% of the federal tax for contributions they have paid into
federally approved state unemployment compensation programs.” California
v. Grace Brethren Church, 457 U.S. 393, 396-97 (1982). Some courts “have
allowed plaintiffs to sue a state in federal court for recovery of past
unemployment claims, principally on the grounds that the state's
unemployment compensation fund is a special, segregated fund as
distinguished from a general revenue fund.” Esparza v. Valdez, 862 F.2d 788,
794 (10th Cir. 1988). Here, however, Ms. Kengne is not making any claims
against the State of Georgia. Instead, she is suing ID.me, a private company,
because she “was unable to create an ID.Me account” and alleges that her
inability to create an account was preventing her from receiving her
unemployment benefits. 7 (Doc. 6 at 4.) Furthermore, the relief that Ms.
7 The Georgia Department of Labor has partnered with ID.me to verify the
identities of claimants for unemployment benefits. https://dol.georgia.gov/
blog-post/idme (last visited Oct. 21, 2022).
12
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Kengne seeks in her complaint is not the recovery of any unemployment
benefits, but rather an order directing ID.me to give her “access to her
account in order for [her] to claim her unemployment benefits.” (Doc. 6 at 5.)
The Court is not aware of any authority, nor has Ms. Kengne provided any,
that allows an individual to sue a private business for injunctive relief
utilizing the Federal Unemployment Tax Act. Thus, reliance on this statute
to establish federal question jurisdiction is also improper.
c. The Fourteenth Amendment
The complaint does not list the Fourteenth Amendment as a basis for
federal question jurisdiction. (Doc. 1-1 at 3.) In her objection to the R&R,
Ms. Kengne states, however, that her claims under the Fourteenth
Amendment “are implied in analyzing the impact that the lack of income can
have on an individual and the deprivation by ID.Me, Inc. of the way for
Plaintiff to access legally obtained income.” (Doc. 9 at 5.)
As a private company, ID.me’s actions in this case are not “fairly
attributable to the State” under the Fourteenth Amendment. Lugar v.
Edmondson Oil Co., 457 U.S. 922, 929 (1982). Ms. Kengne makes the
argument that ID.me is a state actor because it has partnered with the
Georgia Department of Labor “to verify claimant identification in order to
receive any types of unemployment benefits.” (Doc. 9 at 9.) But as the court
13
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in Harris v. McDonald’s Corp., 901 F.Supp. 1552, 1557 (M.D. Fla. 1995)
explained:
Private actors may become state actors only under three theories:
“conspiracy,” “public function,” and “nexus.” The conspiracy
theory requires that the private actor conspire with the State to
deprive the plaintiff of a civil right. The public function theory
requires that the private actor exercise powers exclusively
exclusive to the State. The nexus theory requires the existence of
a sufficiently close relationship or “nexus” between the State and
the private actor so that the action of the private actor “may be
fairly treated as that of the State itself.” Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477
(1974).
The complaint itself is devoid of any allegations that implicate any of these
theories. And the only information provided in Ms. Kengne’s objection to the
R&R regarding the relationship between ID.me and the State of Georgia is
that the state has “partnered with” ID.me. The Court understands this to
mean that the State of Georgia has hired ID.me to perform identification
verification services for it. Ms. Kengne makes no allegations that the State of
Georgia has joined with ID.me in an enterprise or conspiracy to deprive her
or others of their unemployment benefits, nor does she provide any facts
supporting a finding that “[t]he State has so far insinuated itself into a
position of interdependence with [the private party] that it must be
recognized as a joint participant in the challenged activity[.]” Burton v.
Wilmington Parking Auth., 365 U.S. 715, 725 (1961). There are also no
14
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allegations or information that suggest ID.me is exercising a power reserved
exclusively to the State of Georgia. Thus, the allegations and information
provided by Ms. Kengne are not sufficient to support a finding that ID.me is a
state actor subject to the prohibitions of the Fourteenth Amendment.
For the foregoing reasons, Ms. Kengne’s complaint fails to
establish federal question jurisdiction.
2. Diversity Jurisdiction
In her objection to the R&R, Ms. Kengne clarifies that her “claims are
not based on diversity jurisdiction.” (Doc. 9 at 6.) However, because she
asserted diversity of citizenship as a basis for jurisdiction in her complaint
(Doc. 6 at 3), the Court has reviewed the Magistrate Judge’s analysis on this
issue and finds no clear error.
Diversity jurisdiction is proper only when the parties are citizens of
different states and the amount in controversy exceeds $75,000.00. See 28
U.S.C. § 1332(a). Both of these elements must be met for diversity
jurisdiction to exist. The Court addresses each of these elements in turn.
a. Citizenship of the Parties
In evaluating assertions of diversity jurisdiction, federal courts apply
“the well-established rule that diversity of citizenship is assessed at the time
15
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the action is filed.” Freeport–McMoRan, Inc. v. KN Energy, Inc., 498 U.S.
426, 428 (1991). To invoke this Court’s diversity jurisdiction, the complaint
must allege facts that, if true, show that no plaintiff is a citizen of the same
state as any defendant. See Travaglio v. Am. Express Co., 735 F.3d 1266,
1268 (11th Cir. 2013). It is the plaintiff’s obligation to “affirmatively allege
facts demonstrating the existence of jurisdiction.” Taylor v. Appleton, 30 F.3d
1365, 1367 (11th Cir. 1994). “Where, as here, the plaintiff asserts diversity
jurisdiction, [the plaintiff] has the burden to prove that there is
diversity.” King v. Cessna Aircraft Co., 505 F.3d 1160, 1171 (11th Cir. 2007).
Ms. Kengne alleges that she is a citizen of Georgia. (Doc. 6 at 3.) She
alleges that ID.me is a Virginia corporation with its principal place of
business in Georgia. (Id. at 4.) “For the purposes of [diversity jurisdiction], a
corporation shall be deemed to be a citizen of every State and foreign state by
which it has been incorporated and of the State or foreign state where it has
its principal place of business.” 28 U.S.C. § 1332(c). Thus, taking the
allegations of the complaint as true, ID.me is a citizen of both Virginia and
Georgia for purposes of diversity jurisdiction. Because Ms. Kengne and
ID.me are both citizens of Georgia, there is no diversity of citizenship. The
citizenship element of diversity jurisdiction is therefore not satisfied.
16
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b. Amount in Controversy
The second element of diversity jurisdiction is the amount in
controversy, which must exceed $75,000. Ms. Kengne does not plead any
damages in the complaint. “To prove damages by [a] preponderance of the
evidence the party seeking federal jurisdiction must do more than
conclusorily assert that the amount in controversy exceeds $75,000. Failure
to quantify the amount of loss can constitute speculation, which is
insufficient to satisfy the plaintiff’s burden.” Smith v. McDowell, No. 7:10-
CV-134 HL, 2010 WL 4818100, at *2 (M.D. Ga. Nov. 22, 2010). Thus, where
a plaintiff’s complaint contains general allegations that she suffered damages
but does not quantify those damages with any specific dollar figures, she has
not met her burden of establishing the court’s diversity jurisdiction. Bradley
v. Kelly Services, Inc., 224 F. App’x 893, 895 (11th Cir. 2007). See also Salus
v. One World Adoption Svcs., Inc., No. 1:12–CV–894–TWT, 2012 WL
3756611, at *3 (N.D. Ga. Aug. 27, 2012) (finding that the amount in
controversy was not satisfied where “the Plaintiffs have not presented
specific calculations showing that the jurisdictional amount is met.”)
Ms. Kengne has not pleaded any damages, much less an indeterminate
amount of damages. Based on the information before this Court, neither
17
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element required to establish diversity jurisdiction has been sufficiently
alleged in the complaint.
IV. Conclusion
The Court GRANTS IN PART AND DENIES IN PART Ms.
Kengne’s “Application for Appellate Review,” construed as an appeal of
the Magistrate Judge’s June 8, 2022, order denying her leave to
proceed in forma pauperis. (Doc. 5.) Based on new financial
information provided by Ms. Kegne after the June 8, 2022, order, the
Court grants her leave to proceed in this case without prepaying the
filing fee. The Court accordingly DEEMS MOOT Ms. Kegne’s objection
to the Magistrate Judge’s R&R on the issue of Plaintiff’s in forma
pauperis status. The Court OVERRULES Ms. Kengne’s objection to
the R&R on the issue of subject matter jurisdiction and ADOPTS the
R&R (Doc. 7) as to that issue.
The Court has also conducted a review of the complaint pursuant
to 28 U.S.C. § 1915. For the reasons stated above, the Court
DISMISSES the complaint WITHOUT PREJUDICE for lack of subject
matter jurisdiction. As no matters remain pending before this Court,
the Clerk is DIRECTED to close this case.
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SO ORDERED this 24th day of October, 2022.
SARAH E. GERAGHTY
United States District Judge
19
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