United States District Court, N.D. Indiana, Hammond Division
TERRI L. ZAUSA, Plaintiff,
JACK ZAUSA, Defendant.
OPINION AND ORDER
JAMES T. MOODY UNITED STATES DISTRICT COURT
action began with a “Third Party Complaint, ”
filed by plaintiff Terri L. Zausa. (DE # 1.) In her
complaint, she sued Jack Zausa as a defendant, and Michael
Pellin as a “Third-Party Respondent, ” alleging
diversity of citizenship as the basis for jurisdiction.
(Id.) Apparently, Jack Zausa once owed money to
Michael Pellin in the form of a state court judgment, and
plaintiff seeks to enforce that judgment as a “judgment
creditor, ” to the tune of about a million dollars.
(Id.) Plaintiff sought in forma pauperis
status (DE # 4), and Michael Pellin filed a motion to dismiss
(DE # 8).
a plaintiff must pay a statutory filing fee to bring an
action in federal court. 28 U.S.C. § 1914(a). However,
the federal in forma pauperis statute, 28 U.S.C.
§ 1915, provides indigent litigants an opportunity for
meaningful access to the federal courts despite their
inability to pay the costs and fees associated with that
access. To authorize a litigant to proceed in forma
pauperis, a court must make two determinations: first,
whether the litigant is unable to pay the costs of commencing
the action, 28 U.S.C. § 1915(a)(1); and second, whether
the action is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief
against a defendant who is immune from such relief, 28 U.S.C.
respect to the second of these determinations, district
courts have the power under 28 U.S.C. § 1915(e)(2)(B) to
screen complaints, and courts must dismiss a complaint if it
fails to state a claim. Courts apply the same standard under
§ 1915(e)(2)(B) as when addressing a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), DeWalt v.
Carter, 224 F.3d 607, 611 (7th Cir. 2000), and in this
case the screening process dovetails with Pellin's motion
to dismiss, which is also governed by Rule 12(b)(6).
case, it is impossible to tell whether plaintiff is able to
pay the costs of commencing this action, as she failed to
file the proper forms establishing financial hardship
(see AO 293 (Rev. 1/15) (INND Rev. 8/16), available
on the court's website) or submit any detailed financial
information on the basis of which a decision could be made.
Even if she had, however, in forma pauperis status
will not be granted because plaintiff's complaint is
frivolous and the court lacks jurisdiction to entertain it,
as the court explains in more detail below.
Pellin points out, this is not the first time plaintiff has
pursued this matter in federal court. In 2016, she filed a
nearly identical case in the Northern District of Illinois,
No. 1:16 CV 11440 (St. Eve, J.). That case was dismissed for
lack of diversity jurisdiction, since both Terri Zausa (a
plaintiff) and Jack Zausa (a defendant) were residents of
Illinois. Zausa v. Pellin, No. 16-CV-11440, 2017 WL
3730816, at *3 (N.D. Ill. Aug. 30, 2017). Now, plaintiff has
filed her case in this district, attempting to reach the same
counsel attempts to justify jurisdiction with a skewed logic
that is nearly impossible to follow. (DE # 10 at 2: “In
Illinois there was no complete diversity between the
Plaintiff and Defendant. However, we are not in Illinois. In
that, now complete diversity is measured from Indiana, where
there is complete diversity between Plaintiff and Pellin, and
that Defendant does not destroy complete diversity in
Indiana.”) Plaintiff's interpretation of diversity
jurisdiction has no basis in existing law. As it was when
Judge St. Eve ruled in plaintiff's other case, 28 U.S.C.
§ 1332 requires “complete diversity, ” which
means that no plaintiff may be from the same state as any
defendant. Altom Transp., Inc. v. Westchester Fire Ins.
Co., 823 F.3d 416, 419-20 (7th Cir. 2016). It is
undisputed that Terri Zausa (plaintiff) and Jack Zausa (a
defendant) are both residents of Illinois. Thus, this court
lacks jurisdiction over this action and it must be dismissed.
without the jurisdictional issue, this litigation is riddled
with procedural and substantive problems. Most egregiously,
plaintiff has named Pellin as a “Third-Party
Respondent, ” but she does not have the right to do so.
As Federal Rule of Civil Procedure 14 explains, the right to
name third parties is reserved for defendants, or plaintiffs
against whom a claim has been alleged, which is not the case
here. Plaintiff improperly drew Pellin into this lawsuit,
requiring him to defend himself against another lawsuit. At
this point, it is impossible to tell whether the initiation
of this action was the result of simple neglect or bad faith.
But, needless to say, plaintiff's attempt at a
“do-over” of the litigation that failed before
Judge St. Eve will not be successful before the undersigned.
reasons stated above, Pellin's motion to dismiss (DE # 8)
is GRANTED, and this action is
DISMISSED for lack of jurisdiction. Further,
this case is frivolous and meritless, rendering plaintiff
ineligible for in forma pauperis status under 28
U.S.C. § 1915(e)(2)(B)(i), so plaintiff's motion to
proceed in forma pauperis (DE # 4) is
DENIED, and plaintiff is
ORDERED to pay the $400 filing fee in full
by November 29, 2017.
pursuant to Federal Rule of Civil Procedure 11(c)(3), the
court ORDERS plaintiff to show cause by
November 29, 2017, as to why the
court should not order plaintiff to pay Michael Pellin's
attorneys' fees in light of Rule 11(b)(1), which
prohibits parties from using litigation to harass, cause
unnecessary delay, or needlessly increase the cost of
litigation, and Rule 11(b)(2), which requires that claims and
other legal contentions be warranted by existing law or by a
nonfrivolous argument for an extension of existing law.
plaintiff is CAUTIONED that failure to pay
the filing fee and/or further attempts to assert this cause
of action under questionable theories of jurisdiction or
without regard to the Federal Rules of Civil Procedure may
lead to sanctions, possibly including restrictions on filing
lawsuits in the future in this district.