Nails v. Centurytel Phone Company

Filing 3

MEMORANDUM OPINION AND ORDER that the 2 MOTION for Leave to Proceed in forma pauperis is GRANTED; ORDERED that this case is DISMISSED WITHOUT PREJUDICE for want of subject matter jurisdiction. Signed by Judge Mark E. Fuller on 1/18/2007. (wcl, )

Nails v. Centurytel Phone Company

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Case 1:07-cv-00005-MEF-CSC

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Filed 01/18/2007

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION A N G E L A DENISE NAILS, P L A IN T IF F , v. C E N T U R Y T E L PHONE COMPANY, DEFEND AN T. ) ) ) ) ) C A S E NO.: 1:07-cv-005-MEF ) ) (WO-Not Recommended for Publication) ) )

M E M O R A N D U M OPINION AND ORDER P la in tif f has filed a motion seeking to proceed in forma pauperis in this action (Doc. # 2). Upon consideration of the motion, it is O R D E R E D that the motion to proceed in forma pauperis is GRANTED. Upon re v ie w of the complaint filed in this case, the court concludes that dismissal of the complaint p rio r to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B).1 A n g e la Denise Nails ("Nails") filed this suit against Centurytel Phone Company ( " C e n t u ryte l" ) on January 3, 2007 (Doc. # 1). Nails, a citizen of Alabama, brings suit against th e Centurytel, a corporate entity that Plaintiff alleges is incorporated in Alabama. A c c o rd in g to the allegations of the Complaint, this is an action by which Nails is seeking to m a k e a variety of claims for money damages against Centurytel for violating Rule T-18 of

The statute provides, in pertinent part: "[T]he court shall dismiss the case at any tim e if the court determines that . . . the action or appeal­ (i) is frivolous or malicious, (ii) f a ils to state a claim on which relief may be granted; or (iii) seeks monetary relief against a d ef en d an t who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

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Case 1:07-cv-00005-MEF-CSC

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th e Telephone Rules of the Alabama Public Services.2 A federal court is a court of limited of jurisdiction. Kokkonen v. Guardian Life Ins., 5 1 1 U.S. 375, 377 (1994). That is, a federal court is authorized to entertain only certain a c tio n s which the Constitution or Congress has authorized it to hear. Id. "It is to be p re su m e d that a cause lies outside this limited jurisdiction, . . ., and the burden of establishing th e contrary rests upon the party asserting jurisdiction,...." Id. (citations omitted). Therefore, a plaintiff is required by Rule 8(a)(1) of the Federal Rules of Civil Procedure to allege in his c o m p la in t "a short and plain statement of the grounds upon which the court's jurisdiction d e p e n d s." Indeed, a federal court's jurisdiction must be established by a plaintiff in the c o m p la in t by stating the basis of the court's jurisdiction and by pleading facts that d e m o n s tra te the existence of jurisdiction. Taylor v. Appleton, 30 F.3d 1365, 1367 (11 th Cir. 1 9 9 4 ); Kirkland Masonry, Inc. v. Comm'r, 614 F.2d 532, 533 (5 th Cir. 1980) (same).3 P r o se litigants are not excused from compliance with the Federal Rules of Civil P r o c e d u re . Although the court is required to liberally construe a pro se litigant's pleadings, th e court does not have "license to serve as de facto counsel for a party ..., or to re-write an o th e rw is e deficient pleading in order to sustain an action...." GJR Investments, Inc. v. County

Plaintiff has filed at least one other lawsuit against Centurytel containing almost id e n tic a l allegations. That lawsuit was dismissed by this court for want of subject matter ju ri s d ic tio n . In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11 th Cir. Nov. 3, 1981) (e n banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions h a n d e d down prior to the close of business on September 30, 1981. 2
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o f Escambia, Fla., 132 F.3d 1359, 1369 (11 th Cir. 1998). Consequently, a court may not e x c u se a pro se litigant from the requirement of stating the basis for the court's jurisdiction in her pleadings. "[O]nce a court determines that there has been no [Congressional] grant th a t covers a particular case, the court's sole remaining act is to dismiss the case for lack of ju ris d ic tio n ." Morrison v. Allstate Indemnity Co ., 228 F.3d 1255, 1261 (11 th Cir. 2000). A c c o r d , Barnett v. Bailey, 956 F.2d 1036, 1039-41 (11 th Cir.1992) (holding that a court is r e q u ire d to examine its jurisdiction over an action at any time and dismiss an action sua s p o n te for lack of subject matter jurisdiction if jurisdiction is not found). Indeed, Federal R u le of Civil Procedure 12(h)(3) specifically provides that "[w]henever it appears by s u g g e s tio n of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(h)(3) (emphasis added). A f te r a careful review of the Complaint (Doc. # 1), the Court finds that Nails has fa iled to articulate any conceivable basis for federal subject matter jurisdiction. Moreover, g iv e n the nature of this action, the Court cannot imagine any possible, but as yet u n a rtic u la te d basis for federal subject matter jurisdiction over this action. Neither the United S ta te s Constitution nor any act of Congress authorizes this Court to entertain this cause of a c tio n . Accordingly, it is hereby ORDERED that this case is DISMISSED WITHOUT P R E J U D IC E for want of subject matter jurisdiction. DONE this the 18 th day of January, 2007.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 3