Lewis et al. v. The City of Memphis et al. (2017)
(The "Black Lives Matter" Case)
This case was filed by Ms. Lisa Johansen, who claims to be the "real Lisa-Marie Presley", under the federal "RICO" (Racketeer Influenced and Corrupt Organizations) act.
The case involves an amazing number of defendants/appellants. As well as several individuals, the defendants also include a variety of Swedish and Danish organizations, both public and private, which include everything from a hospital to a local governmental authority.
The full list is: JP/POLITIKENS HUS, a Danish foundation; ULRIK HAAGERUP; LOLA SVENSSON; RALPH GLUCKMAN; HANS AHNBERG; SIGTUNA KOMMUN, a Swedish public legal entity; ST, a non-profit organization; ASA GUNNARD; KRONOFOGDEMYNDIGHETEN, a Swedish agency and legal entity; HANS TORNQVIST; MARIANNE GAUFFIN; FREDRIK JANNSSON; EVA JANSSON; AKADEMISKA SJUKHUSET, a Swedish public legal entity; SVENSKA HANDELSBANKEN, a Swedish corporation; VARINGASKOLAN, a Swedish non-profit organization; KERSTIN SUNDBERG; KARIN DAMLIN; SIGTUNA BATKLUBB, a Swedish non-profit organization; SKATTEVERKET, a Swedish agency and legal entity; GORAN KADESIO; ADVOKATSAMFUNDET, a Swedish non-profit organization; CARIN WIKLUND-JORGENSEN; LENNART CHRISTIANSON; RIKARD BACKELIN; INGER SODERHOLM; BRISTA KRAFT AB, a Swedish corporation; CAROLINE HENJERED; ANNIKA HIETALA; DOES 1-100, inclusive (i.e., 100 unnamed defendants!)
A Danish news story entitled "Elvis' svenske »datter« kræver millioner af JP/Politikens Hus" ("Elvis' Swedish
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
LISA MARIE PRESLEY, a/k/a Lisa Johansen, Plaintiff,
JP/POLITIKENS HUS, a Danish Foundation, et al., Defendants.
ORDER ADOPTING THE MAGISTRATE’S REPORT AND RECOMMENDATION,
DENYING PLAINTIFF’S MOTIONS FOR DEFAULT JUDGMENT, GRANTING
CERTAIN DEFENDANTS’ MOTION TO SET ASIDE ENTRY OF DEFAULT AND
GRANTING DEFENDANTS’MOTION TO DISMISS
Before the Court is the Magistrate Judge’s Report and Recommendation filed on January 6, 2014. (DE #73). On January 27, 2014, Plaintiff filed her written objections to the Magistrate’s report and recommendation. (DE #81). The Defendants separately filed responses to Plaintiff’s objections on February 3, 2014 and February 10, 2014. (DE #82 and DE #83).
The Court has reviewed de novo the Magistrate Judge’s Report and Recommendation, the legal analysis, Plaintiff’s objections and Defendants’ responses to Plaintiff’s objections, in addition to the entire record. For the reasons stated below, the Court overrules Plaintiff’s objections and finds the Magistrate Judge’s report and recommendation should be adopted and the case dismissed with prejudice.
II. PROCEDURAL HISTORY
This matter was filed in this court on March 28, 2013. (DE #1). On July 16, 2013, the matter was referred to the Magistrate Judge for administration, determination, or for report and recommendation of all preliminary and pretrial matters pursuant to 28 U.
Based on her proposed findings of fact and determinations, the Magistrate Judge issued a report and recommendation on January 6, 2014 to: 1) grant JP Defendants’ Motion to Dismiss for lack of personal and subject matter jurisdiction and for insufficient service of process pursuant to 28 U.S.C. §§1331 and 1332; 2) set aside the entries of default for insufficient service of process against the named Defendants in Denmark and in Sweden in accordance with Fed. Rule Civ. P. 4(f)(1) and (h)(2); and 3) deny Plaintiff’s Motions for Default Judgments. Finally, the Magistrate Judge recommended that because Plaintiff has failed to sufficiently allege claims for relief under RICO nor effected service on any of the defendants, that the Court sua sponte dismiss the action in its entirety against all defendants for lack of subject matter jurisdiction. (DE #73).
On January 16, 2014, Plaintiff filed a Notice of Voluntary Dismissal of Defendants Annika Hietala, Carin Wklund-Jorgensen, Rikard Backelin, Svenska Handelsbanken, Marianne Gauffin and Hans Tornqvist. (DE #78). On the same date, Plaintiff also filed a Motion to Strike Defendants’ Motions to Dismiss. (DE # 79).
Plaintiff filed written objections to the Magistrate’s report and recommendation on January 27, 2014, DE #81, and Defendants subsequently filed their response to Plaintiff’s objections on February 10, 2014. DE #81 and DE #83.
III. LEGAL STANDARD
After referring a dispositive motion to a Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), the district judge must review de novo a magistrate judge’s proposed findings of fact and recommendations in dispositive motions. The rules provide:
Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by the rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
See 28 U.S.C. §636 (b)(1)(B) and (C); Fed. Rule Civ. P. 72(b); Baker v. Peterson, 67 Fed. App’x. 308, 311 (6th Cir. 2003). In applying the de novo standard, Congress afforded the district judge sound discretion to rely on the Magistrate Judge’s proposed findings and determinations. U.S. v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980). The Court need not conduct a de novo hearing, but must make a de novo determination based on the record only to matters involving disputed facts and findings. Mira, 806 F.2d at 637. Also, de novo review is not required when the objections to the report and recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986).
A. Subject Matter Jurisdiction
Fed. R. Civ. P. 12(b)(3) provides that a court must dismiss the action, if it determines at any time that it lacks subject matter jurisdiction. Moir v. Greater Cleveland Ohio Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). When an issue of subject matter jurisdiction is raised through a motion to dismiss, the plaintiff bears the burden of establishing jurisdiction. Id. In this case, the Magistrate Judge has recommended that the Defendant’s motion to dismiss be granted because all of the parties are residents of Sweden or Denmark. Thus, diversity of citizenship is lacking.
To maintain a diversity action, not only must the amount in controversy exceed $75,000 but the parties must be citizens of different states. See 28 U.S.C. §1332(a). The Magistrate correctly denoted that citizenship and residence are distinguishable. As such, more factors are required to establish citizenship other than Plaintiff’s mere residence in Florida, as opposed to Sweden, the locale of the various defendants. Plaintiff must establish that Florida is her domicile and that she is physically present in the state with the intention of making Florida her permanent home without plans or desires to move elsewhere. Deasy v. Louisville & Jefferson County Metropolitan Sewer Dist., 47 Fed. Appx. 726, 728 (6th Cir. 1973).
Plaintiff objected to the Magistrate’s determination that diversity was lacking. Plaintiff claims she asserted U.S. Citizenship by noting her birthplace was Memphis, Tennessee, and her “factual allegation” that she is the rightful heir of Mr. Elvis Presley. However, as the Magistrate Judge correctly noted, Plaintiff avers in a complaint filed in another matter pending before this Court that she is a resident of Sweden. Further, although Ms. Presley is physically in Florida, she contends she is only there because of the Defendants’ perceived actions, which form the basis for the instant lawsuit. Quoting language in the Complaint:
The Magistrate correctly concluded that based on her own admissions, Plaintiff’s actual citizenship and domicile is Sweden despite her current residence in the state of Florida.
Agreeing with the Magistrate’s report and recommendation, the Defendants reply that Plaintiff’s objections are without merit because: 1) there is no diversity of citizenship; 2) the Magistrate did not disregard Plaintiff’s proposed Rule 41 dismissals as to the JP Defendants; 3) JP Defendants were never properly served; and 4) the Court lacks subject matter jurisdiction because the RICO claim is barred by res judicata and time-barred by the statute of limitations. The JP Defendants go one step further requesting that the Court impose Rule 11 sanctions and dismiss
15. At all relevant times, the substantial part of the unlawful acts and conduct alleged in this complaint was meant to take effect in the United States generally and Shelby County specifically and when relevant to retaliate for and obstruct the judicial proceedings in the District Court of the Western District of Tennessee in Johansen v. Presley et al., 18 U.S.C. §1512 (i); United Nations Convention on Transnational Organized Crime (“UNCTOC”) article 15. 
C. RICO Claim
In order to survive a motion to dismiss for lack of personal and subject matter jurisdiction, the Plaintiff must then establish a prima facie case of RICO in order to survive dismissal with prejudice without the parties having diversity of citizenship. Lepard v. NBD Bank, 384 F.3d 232, 236 (6th Cir. 2004). As such, the Court will address whether Plaintiff has sufficiently plead a RICO claim.
Aside from the procedural impediments that justify adopting the Magistrate’s report and recommendation and dismissing this case, Plaintiff has also failed under Fed. Rule Civ. P. 8(a)(2) to plead factual matters that are facially plausible to support her allegations of RICO violations as well as conspiracy, fraud and misrepresentation.
In order to prove a RICO violation under 18 USC § 1962, the Plaintiff must establish: (1) the existence of an enterprise which affects commerce; 2) that the defendants “associated with” the enterprise; 3) that the defendants participated in the conduct of the enterprise’s affairs; and 4) that the participation was through a pattern of racketeering activity. U.S. v. Sinito, 723 F.2d 1250, 1250 (6th Cir. 1983).
Finally, Plaintiff objects that the Magistrate Judge ignored her claims of mail fraud against the Defendants and only focused on the RICO claims. She argues that her RICO claim is predicated on mail fraud and thus prevents her from hace by email is ineffective. Plaintiff objected to the Magistrate’s proposed findings, yet confirmed that she has never attempted service upon Haagerup and merely re-alleged that Denmark has never expressly excluded service by mail. Although, registered mail may effect service of process under the Hague Convention as long as the receiving country does not object, service must still comply with Fed. R. Civ. P. 4(e)(1). Sibley v. Alcan, Inc., 400 F.Supp.2d 1051, 1052 (N.D. Ohio 2005). All of Plaintiff’s certificates/attestations of service contained in the record indicate that the complaint, supporting attachments and summonses were sent by email or by first class mail to the Defendants. Moreover, Plaintiff confirms in her objections that the JP Defendants were never served, “[i]t was the subsidiary that found the complaint on a public website, and the editor read about the story in a newspaper.”  This does not qualify as proper service.
For the reasons set forth above, the Court finds the Magistrate has correctly concluded that the case must be dismissed for lack of personal and subject matter jurisdiction pursuant to Fed. Rule Civ. P. 12 (b)(1) and 12(b)(4). As such, the Court ADOPTS the Magistrate Judge’s Report and Recommendation to grant certain Defendants’ Motion to Dismiss for lack of subject matter jurisdiction, DE #66. The Court also adopts the Magistrate’s Report and Recommendation to grant certain Defendants’ Motion to Set Aside the Entry of the Default Judgments, DE #56, and to deny Plaintiff’s Motions for Default Judgments, DE #44 - DE #52. Accordingly, all other pending motions filed by Plaintiff are rendered MOOT. (DE #8, DE #19, DE #23, DE #29, DE #77- DE #79. By this ruling, Defendants’ JP/Politikens HUS and Ulrik Haagerup’s Motion for Leave to File a Response, DE #68, the Response, DE #81, and Defendants’ Motion to Dismiss, DE #77, are deemed MOOT. In conclusion, based on the Court’s lack of jurisdiction, the case is DISMISSED with prejudice.
Finally, because the Court has ruled that it lacks subject matter jurisdiction, any further filings by Plaintiff in this Court would be futile. Plaintiff is directed not to file any further documents, motions or notices in this closed case other than a notice of appeal pursuant to Fed. R. App. P. 3.20
IT IS SO ORDERED on this 24th day of February, 2014.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE
1. Plaintiff’s objections to the Magistrate’s Report and Recommendation should have been filed within fourteen days of the entry of the Magistrate’s Report and Recommendation or no later than January 20, 2014.
2. DE #82 captioned, “Response in Opposition to Plaintiff’s Notice of Dismissal and Motion to Strike” will be treated as Defendants’ Kronofogdemyhndigheten, Svenska Handelsbanken, Carin Wilklund-Jorgensen, Lennart Christianson, Rikard Backelin, Inger Sodeholm, Annika Hietala, Marianne Gauffin, Hans Tornqvist, Sigtuna Kommun and Lola Svensson’s Response to Plaintiff’s Objections. DE #83, captioned “
3. The Complaint provides that even as a newborn, Plaintiff’s footprints were duplicative to the alleged footprints of Elvis Presley when he was a newborn and that despite her Swedish heritage, she speaks “flawless English with a Tennessee accent.” DE #1, n .8.
4. DE #4, DE #10, DE #13-14, DE #20-22, DE #31- DE #33.
5. DE #35 - DE #43.