IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

JOSHUA TOLBERT,

Plaintiff,

vs. 

KONCEPT MOTOR CARS, 

STRAWBERRY ROAD AUTO SALES,

Defendants.

NO.9:23-CV-00214-MJT

REPORT AND RECOMMENDATION DISMISSING CASE FOR LACK OF SUBJECT 

MATTER JURISDICTION

This case is assigned to the Honorable Michael J. Truncale, United States District Judge, 

and is referred to the undersigned United States Magistrate Judge for pretrial management. 

Pending before the court is pro se Plaintiff Joshua Tolbert’s Motion for Leave to Proceed in Forma 

Pauperis. Doc. No. 2; see 28 U.S.C. § 1915. 

After reviewing Tolbert’s application to proceed in forma pauperis solely on the basis of 

financial status, the court finds that he meets the indigence requirements of 28 U.S.C. § 1915. 

However, pursuant to the court’s own motion, the undersigned recommends that the court dismiss 

the case sua sponte because Tolbert has failed to establish this court has subject-matter jurisdiction 

to entertain this case.

I. Complaint

Because Tolbert is proceeding pro se, his pleadings are held to “less stringent standards 

than formal pleadings drafted by lawyers” and, as such, must be liberally construed. Haines v. 

Kerner, 404 U.S. 519, 520 (1972); Perez v. United States, 312 F.3d 191, 194-95 (5th Cir. 2002). 

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In his complaint, Tolbert alleges he agreed to purchase a 2017 Dodge Charger for $18,500 from 

Koncept Motor, located in Houston, Texas. However, he cancelled the loan because the vehicle 

had a mechanical issue with the transmission, rendering it undrivable. Tolbert states he never took 

possession of the vehicle and seeks a refund of his down payment in the amount of $6,000 that 

was not returned.

II. Federal Court Jurisdiction

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized 

by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 257 (2013) (quoting Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “It is to be presumed that a cause lies 

outside this limited jurisdiction, . . . and the burden of establishing the contrary rests upon the party 

asserting jurisdiction”—here, the plaintiff. Kokkonen, 511 U.S. at 377 (internal citations omitted). 

There are two basic types of jurisdiction: diversity and federal question. Diversity 

jurisdiction requires that: (1) “the matter in controversy exceed[] the sum or value of $75,000,” 

and (2) that the case be between “citizens of different states.” 28 U.S.C. § 1332(a)(1). By contrast, 

federal question jurisdiction requires that the case “aris[e] under the Constitution, laws, or treaties 

of the United States.” 28 U.S.C. § 1331.

If a federal court does not have subject matter jurisdiction, it must dismiss the case. A 

federal court is “duty-bound to examine its subject-matter jurisdiction sua sponte.” Burciaga v. 

Deutsche Bank Nat’l Trust Co., 871 F.3d 380, 384 n.4 (5th Cir. 2017); Robinson v. Beaumont Bone 

& Joint Inst., No. 1:10-CV-643, 2010 WL 5644820, at *1 (E.D. Tex. Dec. 22, 2010) (Hines, J.) 

(emphasis in original) (internal citation omitted) (“Federal trial courts, moreover, must raise lack 

of subject-matter jurisdiction on their own motions whenever the issue becomes apparent.”), R. & 

R. adopted, No. 1:10-CV-643, 2011 WL 251111 (E.D. Tex. Jan. 25, 2011).

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Here, from the face of the pleadings, it appears that all the parties are Texas citizens. 

Moreover, the amount in controversy does not appear to exceed $75,000. Thus, diversity 

jurisdiction does not exist. Additionally, as Tolbert only alleges state law causes of action for 

negligence, misrepresentation and perhaps breach of contract, federal question jurisdiction does 

not exist either. Accordingly, this case should be dismissed for lack of subject matter jurisdiction 

without prejudice to Tolbert’s right to refile his lawsuit in a court with proper jurisdiction.

III. Recommendation

Plaintiff Joshua Tolbert’s Motion to Proceed in Forma Pauperis (Doc. No. 2) is 

GRANTED. However, his Complaint (Doc. No. 1) should be DISMISSED for failing to establish 

the court possesses subject-matter jurisdiction to entertain the case.

IV. Objections

Pursuant to 28 U.S.C. § 636(b)(1)(C), each party to this action has the right to file 

objections to this Report and Recommendation. Objections to this Report must (1) be in writing, 

(2) specifically identify those findings or recommendations to which the party objects, (3) be 

served and filed within fourteen (14) days after being served with a copy of this Report, and (4) be 

no more than eight (8) pages in length. See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(2); 

E.D. TEX. CIV. R. CV-72(c). A party who objects to this Report is entitled to a de novo

determination by the United States District Judge of those proposed findings and recommendations 

to which a specific objection is timely made. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(3).

A party’s failure to file specific, written objections to the proposed findings of fact and 

conclusions of law contained in this Report, within fourteen (14) days of being served with a copy 

of this Report, bars that party from: (1) entitlement to de novo review by the United States District 

Judge of the findings of fact and conclusions of law, and (2) appellate review, except on grounds 

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of plain error, of any such findings of fact and conclusions of law accepted by the United States 

District Judge. See Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988); Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). 

_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 30th day of January, 2024.

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