Lizzmore v. United States ( 2019 )

In the United States Com:t of Federal Claims
NO. 18-1401C
(Filed: January 8, 2019)
(NOT TO BE PUBLISHED)
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DEIR])RIE C. LIZZMORE, )
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Plaintiff, )
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v. )
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UNITED STATES, )
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Defendant. )
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Deirdrie C. Lizzmore, pro se, Garden City Park, NY.
Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With him on the brief Were
Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E. Kirschrnan, Jr.,
Director, and Deborah A. Bynum, Assistant Director, Commerciai Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C.
OPINION AND ORDER
LETTOW, Senior Judge.
Plaintiff Deirdrie C. Lizzmore has brought suit seeking a declaratory judgment,
injunctive relief, and a temporary restraining order, all related to a foreclosure action on Ms.
Lizzmore’S property. Compl. of Oct. 29, 2018 (“Arn. Compl.”) at 2-3, ECF No. 7.1 She may also
he endeavoring to change the venue of a different case to this court. Am. Compl. at 2.
The United States (“the government”) has moved to dismiss the amended complaint
pursuant to Rule lZ(b)(l) of the Rules of the Court of Federal Claims (“RCFC”). See Def.’s
Mot. to Dismiss (“Def.’s Mot.”), ECF No. 8. Because this court lacks subject-matter jurisdiction
lMs. Lizzmore’s complaint, ECF No. l, and amended complaint are identical, except that
the amended complaint contains this court’s civil cover sheet and certificates of Service.
Citations to the amended complaint correspond to the page marking as reproduced in the
Electronic Case Filing system.
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over the compiaint, the government’s motion to dismiss Ms. Lizzmore’s complaint is
GRANTED.
BACKGROUND
The Stated basis for Ms. Lizzrnore’s complaint is that the “United States and [its] agents
used [her] [i]ntellectual [p]roperty to foreclose on [her] property in the Wrong court and [she is]
seeking a court of competent [j]urisdiction.” Am. Compl. at 2. The civil complaint sheet
indicates the nature of the suit involves excise taxes, Am. Compl. at 4 (“Nature of Suit Code:
206,” Which corresponds to Excise Taxes), and identifies the responsible agency as the
Department of the Treasury, Am. Compl. at 4. The action appears to be based on an “assessment
or collection of taxes.” Am. Compl. at 2.
The amended complaint attaches two certificates of service. Am. Compl. at 5~6. The
first Was mailed by Ms. Lizzmore to “McCabel, Weisberg & Conway, LLC, Attorneys for
Wiirnington Savings Fund Society, FSB, As Trustee of Upland l\/lortgage Loan.”2 Arn. Compl.
at 5. The second Was sent to Maureen O’Connell, the clerk of Nassau County, NeW York, Am.
Compl. at 6, Where Ms. LiZZmore resides, Am. Compl. at 2.3 The relationship between Ms.
Lizzmore and these persons is not apparent No clarifying facts vvere provided in either the
original or amended complaint
STANDARDS FOR DECISION
Rule 12(1))(]) - Lack of Subject~Matter Jurfsdiction
The Tucker Act provides this court With jurisdiction over “any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract With the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U,S.C. § 1491(a)(1). To
invoke this court’s Tucker Act jurisdiction, “a plaintiff must identify a separate source of
substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing United States v. Mifchell, 463 U.S.
206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (19'76)). If a plaintiff fails to raise a
claim under a money-mandating provision, this court “should [disrniss] for lack of subject matter
jurisdiction.” Jan ’s Helicopler Serv., Inc. v. F ederal Aviation Admz'n., 525 F.3d 1299, 1308 (Fed.
Cir. 2008) (quoting Greenlee Cly. v. United States, 487 F.3d 871, 876 (Fed. Cir. 2007)).
2Ms. Lizzmore also labels this as “Trust A.” She does not specify Whether there is a
Trust B or other trusts.
3Garden City Park, Where Ms. Lizzmore lives, is a census-designated place Within the
town ofNorth Hempstead, Nassau County, New York.
2
Ms. Lizzmore, as plaintiff, must establish jurisdiction by a preponderance of the
evidence. Trustea' Inregration, Inc. v. United States, 659 F,3d 1159, 1163 (Fed. Cir. 2011)
(citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)),4 When
ruling on a motion to dismiss for lack of jurisdiction, the court must “accept as true all
undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor
of the plaintif .” Id. (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. l995)). “lf a
court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of iaw.”
Gray v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.)
506, 514 (1868); 'Fhoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also RCFC
l2(h)(3) (“lf the court determines at any time that it lacks subject~matter jurisdiction, the court
must dismiss the action.”).
ANALYSIS
The government contends that l\/is. Lizzmore’s complaint should be dismissed pursuant to
Rule 12(b)(1) for lack of subject matter jurisdiction ln Ms. Lizzmore’s amended complaint, she
argues that the proper court for her claim relating to the theft of intellectual property (or the
collection of excise taxes) is either this court or the Court of lnternational Trade in New York
City, Arn. Compl. at 2, and implies that jurisdiction exists in this court under 28 U.S.C. § 1331,
Am. Compl. at 1. fn support of this proposition, she asserts (Without citation) that “Congress has
not given [d]istrict [c]ourt’s [j]urisdiction to hear any ‘tax’ related case where the defendant civil
or criminal challenges the assessment or collection of taxes.” Am. Compl. at 2.
Ms. Lizzmore’s stated basis for jurisdiction is incorrectl For this court to exercise
jurisdiction over l\/ls. Lizzmore’s claim, it must do so under the Tucker Act, 28 U.S.C. § 1491(a).
Other statutory grants of jurisdiction to this court are inapplicable, and 28 U.S.C. § 1331 grants
federal question jurisdiction only to federal district courts, not this court. See 28 U.S.C. § 1331.
l\/ls. Lizzmore filled out the “Takings Case” box on the complaint cover sheet, and it is
plausible that she is alleging the taking of some of her property. Am. Compl. at 4. The factual
basis for this claim is not stated. The few short and vague sentences she proffers are not enough
to provide a jurisdictional predicate for her suit. Thus, from Ms. Lizzmore’s amended complaint,
the court cannot determine the basis of her claim, whether it implicates a money-mandating
provision, or if it involves the United States.
4A court may “ grant the pro se litigant leeway on procedural matters, such as pleading
requirements.” McZeal v. SprintNextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (citing
Hughes v. Rowe, 449 U.S. 5, 9 (1980) (“An unrepresented litigant should not be punished for his
failure to recognize subtle factual or legal deficiencies in his claims.”)). But this leniency cannot
extend to lessening jurisdictional requirements See Kelley v. Secretary, United States Dep ’t of
Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (“[Aj court may not . . . take a liberal view of . . .
jurisdictional requirement[s] and set a different rule for pro se litigants only.”).
3
Overall, her complaint fails to set out “a short and plain statement of the grounds for the
court’s jurisdiction” or “a short and plain statement of the claim showing that the pleader is
entitled to relief.” RCFC 8(a). The complaint is unavailing on this basis alone. See, e.g. , Ruther
v. United States, No. 18-1110C, 2018 WL 5095451, at *3 (Fed. Cl. Oct. 17, 2018) (finding that
failing to meet pleading requirements of RCFC 8(a) warrants dismissal). Additionally, Ms.
Lizzmore’s failure to invoke a money-mandating provision, either directly or by implication
stemming from the provided facts, also prevents this court from exercising jurisdiction See, e.g.,
Jcm’s Helicoprer Serv., Inc., 525 F.3d at 1308 (quoting Greenlee Cty., 487 F.3d at 876).
Finally, Ms. Lizzmore seeks only equitable relief. See Am. Compl. at 4. 'l``his court has
power to award equitable relief only when specifically authorized by statute. See National Ai'r
Trajj‘i``c Controllers Ass ’n v. United States, 160 F.3d 714, 716"17 (Fed. Cir. 1998) (“Congress has
authorized the Court of Federal Claims to grant equitable relief in certain limited circumstances,
[but there is no] general authority to grant equitable relief . . . .”). None of the specific statutes
authorizing this court to issue equitable relief have been invoked ln particular, under the Tucker
Act, equitable relief must be “incidental and collateral to” a judgment for damages, 28 U.S.C. §
l491(a)(2); see James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998), and Ms. Lizzrnore has
neither identified a money-mandating provision of law nor requested damages Therefore, the
court cannot entertain the relief sought by Ms. Lizzmore.
CONCLUSION
For the reasons stated, the government’s motion to dismiss l\/fs. Lizzmore’s complaint is
GRANTED. Ms. Lizzmore’s complaint shall be DISMISSED Without prejudice. The clerk shall
enter judgment accordingly.
No costs.
lt is so ORDERED.
¢é%/§/
Charles{F. Lettow
Senior Judge