Ray et al v. Pate's Chapel Baptist Church and Cemetery(MAG+)
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
PATE'S CHAPEL BAPTIST
CHURCH AND CEMETERY, et
CIVIL ACTION NO.
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 are Pate’s Chapel Baptist Church and Cemetery,
Mary Alice Ray, Cindy P. Underwood, and Patty Porter
The United States Magistrate Judge entered a
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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
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.”
Limited Remand Order (Doc.
The Eleventh Circuit further ordered that, if the
court finds diversity jurisdiction is lacking, it should
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
declarations or affidavits, sworn testimony, or official
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
Order (Doc. 110) at 6-7.
submitted a number of documents in response.
considered the plaintiffs’ response and examined the
entire record, the court now finds that neither diversity
jurisdiction nor federal-question jurisdiction exists.
plaintiff must allege facts in the complaint showing that
each plaintiff is a citizen of a State different from
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that of each defendant.
28 U.S.C. § 1332(a);
Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir.
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.
Id. at 1269.
residence in a state and ‘an intention to remain there
indefinitely....’” Id. (quoting McCormick v. Aderholt,
293 F.3d 1254, 1257 (11th Cir. 2002)).
alleges that the plaintiffs reside in Florida and the
individual defendants reside in Alabama.1
First Amended Complaint (Doc. 34) at 2, 7.
1. The initial complaint (Doc. 1), which was filed
on a form for pro se civil-rights litigants, did not
include any jurisdictional allegations.
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.
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
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
opportunity to submit evidence of the citizenship of the
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.
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.
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
location of brokerage and bank accounts; membership in
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
Courts can also consider an “individual's
In response to the court’s order, the plaintiffs
filed copies of each of their own birth certificates and
Unfortunately, these documents
do not establish citizenship of the parties for purposes
Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 7 of 16
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.
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
submissions as “confirming U.S. citizenship.”
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
See id. at 2-3.
Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 8 of 16
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
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.
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the plaintiffs stating that at the beginning of or during
this litigation they resided in and intended to stay in
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
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
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.”
F.3d at 1269.
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the litigation against them.
Accordingly, the court
finds that diversity jurisdiction does not exist.
Turning to whether the plaintiffs have successfully
The plaintiffs bring a number of putative
rights under the Fifth and Fourteenth Amendment to the
defendants; and a third claim for a conspiracy to violate
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.
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”
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
clearly forecloses the claim.”
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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rights by allowing the individual defendants to place a
marker on the plaintiffs’ father’s grave without their
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.
These claims simply do
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
conduct, however discriminatory or wrongful.’” (quoting
Shelley v. Kraemer, 334 U.S. 1, 13 (1948)).
There is not
private decision only when it has exercised coercive
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
Committee, 483 U.S. 522, 546 (1987) (additional citation
As the plaintiffs have sued non-State actors
frivolous,” and provide no basis for federal-question
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
Case 2:18-cv-00828-MHT-KFP Document 112 Filed 11/18/21 Page 14 of 16
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
They bring these claims pursuant to 18
U.S.C. § 241, a criminal statute that defines the offense
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.”
statute does not provide a civil cause of action; it
provides for only criminal penalties.
Even if the court
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
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
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
constitutional right protected not just from official,
but also from private encroachment.”
putative federal conspiracy claims.
As the conspiracy
claims are utterly frivolous, they provide no basis for
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In sum, the court finds that the plaintiffs have not
properly invoked either federal-question jurisdiction or
DONE, this the 18th day of November, 2021.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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