Daniel Bernath v. The American Legion, et al

Filing

Opinion issued by court as to Appellant Daniel A. Bernath. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-17280

Date Filed: 11/28/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17280
Non-Argument Calendar
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D.C. Docket No. 2:16-cv-00596-SPC-MRM

DANIEL A. BERNATH,
Plaintiff-Appellant,
versus
THE AMERICAN LEGION,
DON SHIPLEY,
DIANE SHIPLEY,
EXTREME SEAL EXPERIENCE LLC,
MARK CAMERON SEAVEY,
TERRENCE B. HOEY, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(November 28, 2017)

Case: 16-17280

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Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
Daniel A. Bernath appeals pro se the sua sponte dismissal without prejudice
of his amended complaint for lack of subject matter jurisdiction. Bernath alleged
that the defendants harassed him and inflicted damage on his property, in violation
of the Anti-Terrorism Act, 18 U.S.C. § 2333, and the Racketeer Influenced and
Corrupt Organizations Act, id. § 1964(c), and that they engaged in tortious
conduct, in violation of state law. We affirm.
Bernath’s claims against the defendants fail to present a substantial question
of federal law that conferred jurisdiction on the district court. See 28 U.S.C.
§ 1331. “The test of federal jurisdiction” hinges on “whether ‘the cause of action
alleged is so patently without merit as to justify . . . the court’s dismissal for want
of jurisdiction.’” McGinnis v. Ingram Equip. Co., 918 F.2d 1491, 1494 (11th Cir.
1990) (en banc) (quoting Dime Coal Co. v. Combs, 796 F.2d 394, 396 (11th Cir.
1986)). Bernath’s claim for civil damages under the Anti-Terrorism Act, 18 U.S.C.
§ 2333(a), (d), is “wholly insubstantial,” Int’l Cafe, S.A.L. v. Hard Rock Cafe Int’l
(U.S.A.), Inc., 252 F.3d 1274, 1277 (11th Cir. 2001). The defendants do not
plausibly comprise a “foreign organization,” 8 U.S.C. § 1189(a)(1), that committed
acts against Bernath with the intent “to intimidate or coerce a civilian population,”
“to influence the policy of a government by intimidation or coercion,” or “to affect
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the conduct of a government by mass destruction, assassination or kidnapping,” 18
U.S.C. § 2331(1). And Bernath alleged no pattern of racketeering activity by the
Shipleys, The American Legion, and Extreme Seal Experience LLC, consisting of
acts that violated the Patriot Act, Pub. L. No. 107-56, § 813, 115 Stat. 424, or the
Hobbs Act, 18 U.S.C. § 1961(1)(B), to present a plausible claim under the
Racketeer Influenced Act, id. § 1964(c).
Bernath’s amended complaint also fails to allege diversity of citizenship
among the parties. 28 U.S.C. § 1332(a). Federal district courts have original
jurisdiction over civil actions “between . . . citizens of different States” where the
amount in controversy exceeds $75,000. Id. § 1332(a)(1). Bernath failed to allege
that there was “complete diversity between all plaintiffs and all defendants.” See
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). Bernath alleged where he and
the defendants resided, instead of where they were citizens. See Travaglio v. Am.
Exp. Co., 735 F.3d 1266, 1269 (11th Cir. 2013) (“[A]llegations in [a] complaint
about . . . citizenship are fatally defective” when it consists of “[r]esidence
alone[.]”). Bernath also failed to allege the citizenship of each member of Extreme
Seal, which enjoys “citizen[ship] [in] every state that any member is a citizen of,”
Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1220 (11th Cir.
2017). And The American Legion, as a federally chartered corporation, 36 U.S.C.
§ 21701, is not considered a citizen of any state “unless [its] activities [are]
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sufficiently ‘localized’ in one state.” See Loyola Fed. Sav. Bank v. Fickling, 58
F.3d 603, 606 (11th Cir. 1995). Bernath alleged that The American Legion had “its
headquarters . . . [in] Indiana” and “operate[d] an unlicensed investigative business
within Florida,” which controverts his argument that the corporation is a citizen of
a single state for diversity purposes.
The district court correctly dismissed Bernath’s complaint. Because the
district court lacked jurisdiction based on a question of federal law or on diversity
of citizenship, 28 U.S.C. §§ 1331, 1332, it had to “dismiss [Bernath’s] state law
claims.” See Scarfo v. Ginsberg, 175 F.3d 957, 962 (11th Cir. 1999). Bernath
argues that he should have been given a second opportunity to amend his
complaint, but the district court dismissed the complaint without prejudice, so
Bernath is free to file another complaint if he can allege a plausible claim against
the defendants that invokes the jurisdiction of the district court. The district court
also did not abuse its discretion in denying Bernath’s request for jurisdictional
discovery when no jurisdictional facts were in dispute.
We AFFIRM the dismissal without prejudice of Bernath’s complaint.

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