Huberty v. The United States of America et al (MAG+)

Filing 8

RECOMMENDATION of the Magistrate Judge that this case be dismissed prior to service of process for lack of jurisdiction. Objections to R&R due by 7/24/2009. Signed by Honorable Wallace Capel, Jr on 6/24/09. (sl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION D O N A L D M. HUBERTY, P la in tif f , v. T H E UNITED STATES OF AMERICA, e t al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

CASE NO. 2:09cv350-WKW

R E C O M M E N D A T IO N OF THE MAGISTRATE JUDGE
O n 16 April 2009, Plaintiff filed this complaint against the United States, a United S tate s Ambassador, as well as a few employees of the United States Embassy in Costa R ica . (Doc. #1). Upon a review of the Complaint, the Court noticed fatal defects in P lain tiff 's Complaint. Thus, the Court Ordered Plaintiff to amend his complaint to c o rr e c t the defects. See Order of 23 April 2009 (Doc. #5). Plaintiff has failed to amend. For the reasons that follow, the undersigned Magistrate Judge RECOMMENDS th a t this case be DISMISSED, prior to service of process, for lack of jurisdiction. I. BACKGROUND T a k in g the facts of the Complaint as true, the background of this case is as f o llo w s : Plaintiff, Donald M. Huberty (Huberty), is a resident of San Jose, Costa Rica. Huberty alleges that on 30 November 2005, he "walked to the U.S. Embassy in San Jose, C o s ta Rica, to consult current reference books," as was his wont. Complaint (Doc. #1 at

2 ). After clearing the security posts, Huberty "was invited to be seated awaiting the re tu rn of the very helpful librarian." Id. While waiting, Huberty made critical remarks a b o u t Embassy wastefulness to fellow visitors. Id. Unbeknownst to Huberty, "Embassy P u b lic Servants had installed illegal recording devices to secretly photograph and record th e actions and conversations of unsuspecting visitors." Id. In less than twenty minutes a f te r Huberty had made his remarks, "Embassy Security Director Michael Wilkens led a la rg e group of [presumably large] security guards (that had been secretly listening and o b s e rv in g illegally), into the very large reception room." Id. Wilkens himself "[was] a g ia n t of a man. Standing about 6'8" and carrying about 300 pounds." Id. After q u e stio n in g Huberty aboutr his purpose at the Embassy, Wilkens denied Huberty use of th e reference book and ordered him to leave. Id. Huberty "promised to leave after briefly re a d in g in a reference book for a few minutes." Id. That was the last time Huberty was a llo w e d in the Embassy. Id. at 3. II D IS C U S S IO N A s the Court informed Huberty, he has failed to establish this Court's jurisdiction to hear his claim. Huberty's statement of jurisdiction is as follows: P la in tif f Huberty choose [sic] Montgomery, Alabama, as the most fitting c ity for him to try to get his day in Court. These past 3 years have been a lo n g , lonely effort seeking justice under the law, as did Rosa Parks 54 years ago. (D o c. #1 at 3). As the Court stated in its Order of 23 April 2009, "[w]hile Mrs. Parks's im p o rta n t act of defiance here in Montgomery on 1 December 1955, provided a spark for 2

th e civil rights movement, it did not provide this Court with special jurisdiction over civil r ig h t s

cases." (Doc. #5 at 1). In fact, "[f]ederal courts are courts of limited jurisdiction." United States v. Rojas, 429 F.3d 1317, 1320 (11th Cir. 2005) (citing Keene Corp. v. U n ite d States, 508 U.S. 200, 207 (1993), Delaware v. Van Arsdall, 475 U.S. 673, 692 (1 9 8 6 ), and Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). This is why Rule 8 (a )(1 ) of the Federal Rules of Civil Procedure requires "a short and plain statement of th e grounds for the court's jurisdiction." Huberty's complaint lacks such a statement. The Court also informed Huberty that the Complaint appeared to allege no v iolatio n of federal law or the United States Constitution, and that, therefore, the Court la c k e d subject matter jurisdiction. See Taylor, 30 F.3d at1367 ("Federal question ju ris d ic tio n exists when an action arises under the Constitution, laws, or treaties of the U n ited States."). "[I]t is well settled that a federal court is obligated to inquire into s u b je c t matter jurisdiction sua sponte whenever it may be lacking" and "[i]f the court f in d s that it does not have subject matter jurisdiction, the court's sole remaining act is to d is m is s the case for lack of jurisdiction." Guevara v. Republic of Peru, 468 F.3d 1289, 1 3 0 5 (11th Cir. 2006) (citations omitted). The Court made Huberty aware of the fatal defects in his Complaint and Ordered

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h im to amend.1 See (Doc. #5). Huberty has ignored this order.2 This Court lacks ju ris d ic tio n to hear Huberty's claims and recommends the Complaint be DISMISSED. III. C O N C L U SIO N F o r the reasons discussed above, it is the RECOMMENDATION of the u n d e r s ig n e d Magistrate Judge that this case be DISMISSED prior to service of process fo r lack of jurisdiction. It is further ORDERED that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before 24 July 2009.3 Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation objected to. Frivolous, c o n c lu s iv e or general objections will not be considered by the District Court. The parties a re advised that this Recommendation is not a final order of the court and, therefore, it is n o t appealable. F a ilu re to file written objections to the proposed findings and recommendations in

There appears to be several other issues with Huberty's Complaint, including the fact that the United States would have to waive immunity to suit, see Asociacion De Empleados Del Area Canalera (ASEDAC) v. Panama Canal Commission, 453 F.3d 1309, 1315 (11th Cir. 2006) (explaining that the "United States' immunity from suit extends to its agencies"), or that Huberty would need to file suit under the Federal Tort Claims Act, after he had exhausted his administrative remedies. See Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994) ("A federal court may not exercise jurisdiction over a suit under the FTCA unless the claimant first files an administrative claim with the appropriate agency."). Rather than amend his deficient Complaint, Huberty filed a Motion to set aside this Court's Order. See (Doc. #7). The Court is allowing Huberty additional time to file any objections due to his residency in Costa Rica and his claims that it takes additional time to receive the mail from the Court.
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th e Magistrate Judge's report shall bar the party from a de novo determination by the D is tric t Court of issues covered in the report and shall bar the party from attacking on a p p e al factual findings in the report accepted or adopted by the District Court except upon g ro u n d s of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th C i r. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also B o n n e r v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as b in d in g precedent all of the decisions of the former Fifth Circuit handed down prior to the clos e of business on September 30, 1981). D O N E this 24th day of June, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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