Ray et al v. Pate's Chapel Baptist Church and Cemetery(MAG+)

Filing 112

OPINION AND ORDER: The case is now back before this court on remand from the Eleventh Circuit Court of Appeals for "the limited purpose of determining the citizenship of the parties to establish whether diversity jurisdiction existed, given t hat the plaintiffs alleged only the state residences of the individual parties." Limited Remand Order (Doc. 109 . The Eleventh Circuit further ordered that, if the court finds diversity jurisdiction is lacking, it should "inquire as to whe ther the plaintiffs invoked its federal-question jurisdiction." Id. In sum, the court finds that the plaintiffs have not properly invoked either federal-question jurisdiction or diversity jurisdiction. Signed by Honorable Judge Myron H. Thompson on 11/18/2021. Furnished Appeals Clerk.(dmn, )

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 1 of 16

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
CATHY RAY and
DEBBIE GONZALEZ,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
PATE'S CHAPEL BAPTIST
CHURCH AND CEMETERY, et
al.,
Defendants.

CIVIL ACTION NO.
2:18cv828-MHT
(WO)

OPINION AND ORDER
Pro se plaintiffs Cathy Ray and Debbie Gonzalez filed
this lawsuit asserting a variety of claims under state
and federal law stemming from their efforts to place a
headstone on their father’s unmarked grave, a dispute
about the location of their father’s grave, and the
defendants’

involvement

plaintiffs’

father

in

without

placing
their

a

headstone

permission.

for
The

defendants are Pate’s Chapel Baptist Church and Cemetery,
Mary Alice Ray, Cindy P. Underwood, and Patty Porter
Pretus.

The United States Magistrate Judge entered a

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 2 of 16

recommendation

that

the

court

dismiss

the

case

for

failure to state a claim upon which relief can be granted
or failure to comply with the Federal Rules of Civil
Procedure and the court’s orders, see Recommendation
(Doc. 92); the court adopted the recommendation in part,
dismissing the case for failure to state a claim. See
Opinion

and

Judgment

(Doc.

101

&

Doc.

102).

The

plaintiffs then appealed.
The case is now back before this court on remand from
the Eleventh Circuit Court of Appeals for “the limited
purpose of determining the citizenship of the parties to
establish whether diversity jurisdiction existed, given
that the plaintiffs alleged only the state residences of
the individual parties.”
109).

Limited Remand Order (Doc.

The Eleventh Circuit further ordered that, if the

court finds diversity jurisdiction is lacking, it should
“inquire

as

to

whether

the

federal-question jurisdiction.”

2

plaintiffs
Id.

invoked

its

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 3 of 16

After receipt of the remand order, this court entered
an order explaining the meaning of citizenship in the
diversity-jurisdiction context and giving the plaintiffs
an

opportunity

“to

submit

evidence

(such

as

sworn

declarations or affidavits, sworn testimony, or official
documents)

indicating

the

States

of

which

each

of

plaintiffs Cathy Ray and Debbie Gonzalez is a ‘citizen’
and the States of which each of defendants Mary Alice
Ray, Cindy P. Underwood, and Patty Porter Pretus is a
‘citizen.’”

Order (Doc. 110) at 6-7.

The plaintiffs

submitted a number of documents in response.

Having

considered the plaintiffs’ response and examined the
entire record, the court now finds that neither diversity
jurisdiction nor federal-question jurisdiction exists.

Diversity Jurisdiction
To

invoke

the

court’s

diversity

jurisdiction,

a

plaintiff must allege facts in the complaint showing that
each plaintiff is a citizen of a State different from
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Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 4 of 16

that of each defendant.

See

28 U.S.C. § 1332(a);

Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir.
2013).

An allegation that a party is a “resident” of a

State is not sufficient to establish that a party is a
“citizen” of that State.
equivalent

to

jurisdiction[,]

‘domicile’
...

Id. at 1269.
for

[a]nd

“Citizenship is

purposes

domicile

of

diversity

requires

both

residence in a state and ‘an intention to remain there
indefinitely....’” Id. (quoting McCormick v. Aderholt,
293 F.3d 1254, 1257 (11th Cir. 2002)).
The

plaintiffs’

revised

first

amended

complaint

alleges that the plaintiffs reside in Florida and the
individual defendants reside in Alabama.1

See Revised

First Amended Complaint (Doc. 34) at 2, 7.

Because the

1. The initial complaint (Doc. 1), which was filed
on a form for pro se civil-rights litigants, did not
include any jurisdictional allegations.
The amended
complaint (Doc. 5) alleged that the plaintiffs were
residents of Florida and named only one defendant, Pate’s
Chapel, which was alleged to be an Alabama corporation.
4

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 5 of 16

complaint provides only the States where the individual
parties ‘reside,’ not where they are ‘citizens,’ it does
not establish diversity jurisdiction.2

Though Pate’s

Chapel challenged the sufficiency of those allegations
in a motion to dismiss, the plaintiffs did not file a
motion to amend the complaint.

See Amended Motion to

Dismiss (Doc. 43) at 11-12.
As the complaint is not sufficient to establish
jurisdiction,

the

court

gave

the

plaintiffs

an

opportunity to submit evidence of the citizenship of the
parties.

In determining citizenship, courts should look

to a number of factors, such as “current residence;

2. In remanding the case, the Eleventh Circuit
expressed concern about the citizenship of only the
individual parties, not defendant Pate's Chapel, which,
according to the operative complaint, is “an Alabama
corporation operating in Chilton County, Alabama.”
Revised First Amended Complaint (Doc. 34) at 2.
The
court notes that defendant Pates Chapel did not challenge
the sufficiency of this jurisdictional allegation in its
motion to dismiss, where it challenged the sufficiency
of the allegations as to the other parties. See Amended
Motion to Dismiss (Doc. 43) at 11-12.
5

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 6 of 16

residence of family and dependents; place of employment
and name of business; voting registration and voting
practices;

location

of

personal

and

real

property;

location of brokerage and bank accounts; membership in
church,

clubs,

and

business

organizations;

driver's

license and automobile registration; and payment of tax.”
McDonald v. Equitable Life Ins. Co. of Iowa, 13 F. Supp.
2d 1279, 1281 (M.D. Ala. 1998) (Thompson, J.) (citations
omitted).

Courts can also consider an “individual's

statements

of

intent”

particular State.

to

stay

indefinitely

in

a

Id.

In response to the court’s order, the plaintiffs
filed copies of each of their own birth certificates and
defendant

Ray’s,

Underwood’s,

marriage certificates.

and

Porter

Pretus’s

Unfortunately, these documents

do not establish citizenship of the parties for purposes

6

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 7 of 16

of

diversity

jurisdiction.3

The

plaintiffs’

birth

certificates do not show that they were citizens of
Florida at any time during the litigation: the documents
show only that the plaintiffs were born in Alabama.

Nor

do the individual defendants’ marriage certificates show
that they were citizens of Alabama (or some State(s)
other than the plaintiffs’) when the litigation against

3.
The
plaintiffs
apparently
viewed
these
submissions as “confirming U.S. citizenship.”
See
Response (Doc. 111) at 1. However, the parties’ American
citizenship does not answer the question now before the
court. Instead, what the court needs to determine is of
which States the individual parties are citizens. As the
court previously explained, “[i]n the context of
determining whether a federal district court has
diversity jurisdiction, the word ‘citizenship’ has a
special meaning. It generally refers not to whether the
person is a citizen of a particular country, but instead
to whether the person is ‘domiciled’ in a particular
State.” See Order (Doc. 110) at 2. The court further
explained that to be domiciled in a State means to reside
in a State with the intention to remain there
indefinitely.
See id. at 2-3.
7

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 8 of 16

them

commenced.4

The

marriage

certificates

of

the

individual defendants show that each of the defendants
was married in Alabama and was a resident of Alabama at
the time of marriage, but those marriages occurred in
2015, 1997, and 1974--years before this case was filed.
The fact that the defendants resided in and married in
Alabama years ago does not prove that they are citizens
of Alabama with regard to this case.
The court has reviewed the record for additional
evidence of where the parties were domiciled when the
litigation commenced.5

The court has no affidavits from

4. “[D]iversity is determined when the suit is
instituted.” McDonald, 13 F. Supp. 2d at 1280 (citing
Smith v. Sperling, 354 U.S. 91, 93 n. 1 (1957). For the
individual defendants, this presumably would be when they
were added to the lawsuit.
5. Admittedly, the record does reflect that the
plaintiffs’ service addresses throughout this litigation
have been in Florida.
But even if this were to be
considered sufficient to establish residence--which the
court does not find--residence is not the same as
domicile or citizenship, as the Circuit has made clear.
8

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 9 of 16

the plaintiffs stating that at the beginning of or during
this litigation they resided in and intended to stay in
Florida indefinitely.

Nor have the plaintiffs presented

copies of their drivers’ licenses, voter registration
forms, records of property ownership, or other evidence
of residence and intent to remain in Florida at the
relevant times.6

And even if the court were to find that

the plaintiffs are domiciled in Florida, the record does
not contain evidence sufficient to establish domicile as
to each of the individual defendants at the beginning of

See Travaglio v. Am. Exp. Co., 735 F.3d at 1268-69.
6. The court notes that, in response to defendant
Pates
Chapel’s
motion
to
dismiss
for
lack
of
subject-matter jurisdiction, the plaintiffs stated that
they and the individual defendants are citizens of the
States where they reside. See Response to Amended Motion
to Dismiss (Doc. 54) at 5. “But a sentence in an unsworn
brief is not evidence. ... [The Eleventh Circuit has]
never held that an unsworn statement in a brief, alone,
can demonstrate a party's citizenship for purposes of
establishing diversity jurisdiction.”
Travaglio, 735
F.3d at 1269.
9

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 10 of 16

the litigation against them.

Accordingly, the court

finds that diversity jurisdiction does not exist.

Federal-Question Jurisdiction
Turning to whether the plaintiffs have successfully
invoked

federal-question

plainly no.
federal

jurisdiction,

the

answer

is

The plaintiffs bring a number of putative

claims:

one

claim

for

infringement

of

their

rights under the Fifth and Fourteenth Amendment to the
United

States

Chapel;

Constitution

another

Fourteenth

similar

Amendment

against

claim

against

defendant

under
the

the

three

Pate’s

Fifth

and

individual

defendants; and a third claim for a conspiracy to violate
civil

rights

against

defendant

Pate’s

Chapel;

and

a

fourth also for a conspiracy to violate civil rights
against the individual defendants.

None of these claims

is sufficient to create federal-question jurisdiction
because they are all frivolous.

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Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 11 of 16

A claim that “is wholly insubstantial and frivolous”
is

insufficient

jurisdiction.

to

establish

federal-question

Blue Cross & Blue Shield of Alabama v.

Sanders, 138 F.3d 1347, 1352 (11th Cir. 1998) (quoting
Bell v. Hood, 327 U.S. 678, 682–83 (1946)).

The test is

an exacting one: “subject matter jurisdiction is lacking
only if the claim has no plausible foundation, or if the
court

concludes

that

a

prior

clearly forecloses the claim.”

Supreme

Court

decision

Id. (quoting Barnett v.

Bailey, 956 F.2d 1036, 1041 (11th Cir. 1992) (internal
quotations and citation omitted)).

“The test of federal

jurisdiction ... is 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

Equipment Co., Inc., 918 F.2d 1491, 1494 (11th Cir. 1990)
(en banc) (quoting Dime Coal Co. v. Combs, 796 F.2d 394,
396 (11th Cir. 1986)).
Here, the plaintiffs claim that defendant Pate’s
Chapel violated their Fifth and Fourteenth Amendment
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Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 12 of 16

rights by allowing the individual defendants to place a
marker on the plaintiffs’ father’s grave without their
permission.

Relatedly, they claim that the individual

defendants violated their Fifth and Fourteenth Amendment
rights by placing a marker on the plaintiffs’ father’s
grave without their permission.
not

raise

constitutional

These claims simply do

issues.

The

Fifth

and

Fourteenth Amendments “do not apply to private parties
unless those parties are engaged in activity deemed to
be ‘state action.’”

Nat'l Broad. Co. v. Commc'ns Workers

of Am., AFL-CIO, 860 F.2d 1022, 1024 (11th Cir. 1988)
(quoting Jackson v. Metropolitan Edison Co., 419 U.S.
345, 349 (1974)); see also id. at 1025 (“The Fourteenth
Amendment

‘erects

no

shield

against

merely

private

conduct, however discriminatory or wrongful.’” (quoting
Shelley v. Kraemer, 334 U.S. 1, 13 (1948)).
even

a

hint

government

of

state

‘normally

action

can

be

here.
held

There is not

See

id.

responsible

(“[A]
for

a

private decision only when it has exercised coercive
12

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 13 of 16

power or has provided such significant encouragement,
either overt or covert, that the choice must in law be
deemed to be that of the [government].”) (quoting San
Francisco

Arts

&

Athletics,

Inc.

v.

U.S.

Olympic

Committee, 483 U.S. 522, 546 (1987) (additional citation
omitted)).

As the plaintiffs have sued non-State actors

for

private

acts,

claims

are

purely

Amendment

their
“wholly

Fifth

and

Fourteenth

insubstantial

and

frivolous,” and provide no basis for federal-question
jurisdiction.7

Blue Cross & Blue Shield of Alabama, 138

F.3d at 1352.

7. Although the plaintiffs did not mention 42 U.S.C.
§ 1983 in their complaint, the court assumes they bring
their Fifth and Fourteenth Amendment claims through it.
Section 1983 poses another insurmountable obstacle to
their due-process claims as it requires proof of action
under color of state law, which “excludes from its reach
merely private conduct, no matter how discriminatory or
wrongful.” Focus on the Family v. Pinellas Suncoast
Transit Authority, 344 F.3d 1263, 1277 (11th Cir. 2003)
(internal quotation marks omitted) (quoting American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50
(1999)).
13

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 14 of 16

The

plaintiffs’

frivolous.

conspiracy

claims

are

equally

The plaintiffs allege that the defendants

conspired to place a marker on a gravesite for their
father without their permission, and in order to injure
the plaintiffs.

They bring these claims pursuant to 18

U.S.C. § 241, a criminal statute that defines the offense
of

conspiring

to

“injure,

oppress,

threaten,

or

intimidate any person in any State ... in the free
exercise or enjoyment of any right or privilege secured
to him by the Constitution or laws of the United States,
or because of his having so exercised the same.”

This

statute does not provide a civil cause of action; it
provides for only criminal penalties.
were

to

liberally

construe

the

Even if the court

plaintiffs’

claim

as

brought under 42 U.S.C. § 1985(3), which creates a civil
cause of action for civil-rights conspiracy, the claim
would be baseless.

“The elements of a cause of action

under § 1985(3) are: (1) a conspiracy, (2) for the purpose
of depriving, either directly or indirectly, any person
14

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 15 of 16

or class of persons of the equal protection of the laws,
or of equal privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy, (4) whereby
a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the
United States.”

Trawinski v. United Techs., 313 F.3d

1295, 1299 (11th Cir. 2002) (quoting Childree v. UAP/GA
AG CHEM, Inc., 92 F.3d 1140, 1146–47 (11th Cir. 1996)).
Such a claim requires “proof of invidious discriminatory
intent

as

well

as

the

violation

of

a

serious

constitutional right protected not just from official,
but also from private encroachment.”

Id.

Neither of

those

the

plaintiffs’

requirements

are

at

play

putative federal conspiracy claims.

in

As the conspiracy

claims are utterly frivolous, they provide no basis for
federal-question jurisdiction.

***

15

Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 16 of 16

In sum, the court finds that the plaintiffs have not
properly invoked either federal-question jurisdiction or
diversity jurisdiction.
DONE, this the 18th day of November, 2021.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

16