Carroll et al v. Commonwealth Land Title Insurance Company

Filing 12

MEMORANDUM OPINION AND ORDER- re 2 Motion leave to proceed in forma pauperis is GRANTED; Plaintiff is ORDERED to file a final amended complaint, by February 24, 2016, as directed within. Signed by Judge William M Acker, Jr on 2/10/16. (SAC ) *Order placed in first class mail to pro se Plaintiff.

FILED
2016 Feb-10 PM 12:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES N. CARROLL,

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Plaintiff,
v.
FIRST FINANCIAL BANK and
COMMONWEALTH LAND TITLE
INSURANCE CO.,
Defendants.

CIVIL ACTION NO.
2:15-cv-2255-WMA

MEMORANDUM OPINION AND ORDER
Plaintiff James N. Carroll initiated this action on December
11,

2015.

His

complaint

names

JBJ

Construction,

LLC,

as

an

additional plaintiff and Commonwealth Land Title Company as a
defendant. He also moved for leave to proceed with this action in
forma pauperis. (Doc. 2). That motion is GRANTED. Carroll has since
filed various documents with the court, one of which is styled as
an

amended

complaint.

That

document

no

longer

lists

JBJ

Construction, LLC, as a plaintiff and names First Financial Bank
and Commonwealth Land Title Insurance Company as defendants. (Doc.
7). Given that Carroll is permitted to amend his complaint under
Fed. R. Civ. P. 15(a)(1) once as a matter of course prior to
service, the court deems the amended complaint to be operative.
The

amended

complaint,

however,

is

deficient

in

several

respects. Most notably, Carroll fails to allege any basis for the
court to exercise subject matter jurisdiction over the action.

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“Regardless of whether a plaintiff is represented by a veteran
attorney or, as in this civil case, proceeds pro se, a court must
first determine whether it has proper subject matter jurisdiction
before addressing the substantive issues.” Taylor v. Appleton, 30
F.3d 1365, 1366 (11th Cir. 1994). “Federal courts are courts of
limited

jurisdiction

and

are

required

to

inquire

into

their

jurisdiction at the earliest possible point in the proceeding.”
Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1279-80 (11th Cir.
2001).
For the court to possess subject matter jurisdiction over the
case, the plaintiff must allege the presence of a federal question
under 28 U.S.C. § 1331 or diversity of citizenship under 28 U.S.C.
§ 1332. In this case, Carroll complains of fraudulent conduct by
the defendants. Fraud, however, is generally a state-law claim and
does not present a federal question as pled by Carroll. Neither has
Carroll alleged the facts necessary to demonstrate diversity of
citizenship. “Diversity jurisdiction requires complete diversity
[of citizenship]; every plaintiff must be diverse from every
defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287
(11th Cir. 1998). An individual is a citizen in the state in which
he is domiciled. Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974).
A corporation is a citizen in the state of its incorporation and
the state in which its principal place of business is located.
Rolling Greens MHP, L.P. v. Comcast SCH Holdings, LLC, 374 F.3d

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1020, 1021 n.1 (11th Cir. 2004). A plaintiff relying on diversity
to establish jurisdiction must allege the citizenship of each
party, Travaglio v. Am. Express Co., 735 F.3d 1266, 1268 (11th Cir.
2013), but Carroll has not done so. Because of this failure, the
court

is

unable

to

undertake

its

required

inquiry

into

its

jurisdiction.
Additionally, Carroll’s fraud claim is deficient as currently
pled. First, Carroll has not pled the required elements of fraud
and has not pled his claim with the specificity required by Fed. R.
Civ. P. 9(b). Under Alabama law, the elements of fraud are “(1) a
false representation (2) of a material existing fact (3) reasonably
relied upon by the plaintiff (4) who suffered damage as a proximate
consequence of the misrepresentation.” Exxon Mobil Corp. v. Ala.
Dep’t of Conservation & Natural Res., 986 So. 2d 1093, 1114 (Ala.
2007) (emphasis and internal quotations omitted). Under Fed. R.
Civ. P. 9(b), a plaintiff asserting a claim for fraud must “state
with

particularity

mistake.”

the

circumstances

constituting

fraud

or

The Eleventh Circuit has held:

Rule 9(b) is satisfied if the complaint sets forth “(1)
precisely what statements were made in what documents or
oral representations or what omissions were made, and (2)
the time and place of each such statement and the person
responsible for making (or, in the case of omission, not
making) same, and (3) the content of such statements and
the manner in which they misled the plaintiff, and (4)
what the defendants obtained as a consequence of the
fraud.”
Tello v. Dean Witter Reynolds, Inc., 494 F.3d 956, 972 (11th Cir.

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2007) (quoting Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202
(11th Cir. 2001)).
Carroll’s complaint fails to meet this standard. While his
submissions mention a potentially altered legal description of the
land in question, he does not allege how any of the elements of
fraud apart from a false representation are present and he does not
do so with the specificity required by Rule 9. His conclusory
descriptions of defendants’ conduct as a “fraudulent mess” and
other generalized accusations of fraud are plainly insufficient. As
currently

pled,

then,

Carroll’s

fraud

claim

is

subject

to

dismissal.
In addition to failing to state a claim for fraud, any such
claim appears to be time-barred. Under Alabama law, fraud claims
are subject to a two-year statute of limitations. Ala. Code §
6-2-38(l). Here, Carroll's allegations relate back to a 2003
purchase of real property that occurred at least twelve years
before the he filed the instant complaint.
In his various submissions, Carroll alleges that he discovered
documents in December 2015 that demonstrate defendants’ fraud. This
may be an attempt to invoke the savings clause of Ala. Code §
6-2-3, which provides: “In actions seeking relief on the ground of
fraud where the statute has created a bar, the claim must not be
considered as having accrued until the discovery by the aggrieved
party of the fact constituting the fraud . . . .” The savings

4

clause

“supplies

an

objective

test,

tolling

the

statute

of

limitations on a fraud claim until the aggrieved party discovers
or, in the exercise of reasonable care, should have discovered, the
facts constituting the fraud.” Potter v. First Real Estate Co., 844
So. 2d 540, 545 (Ala. 2002). A party invoking the savings clause
has

the

burden

of

Chambless-Killingsworth

demonstrating
and

Assocs.,

P.C.

its
v.

application.
Osmose

Wood

Preserving, Inc., 695 So. 2d 25, 27 (Ala. Civ. App. 1996).
Carroll’s complaint fails to meet his burden in demonstrating
that the savings clause applies. He only describes his December
2015 discovery in general terms and does not allege why this
discovery could not or should not have been made sooner, given the
extensive history of litigation concerning the subject property.
While outright dismissal of the action may be warranted, the
court will

provide

Carroll

with

an

opportunity

to

amend

his

complaint. Accordingly, Carroll is ORDERED to file a final amended
complaint, by February 24, 2016, that (1) demonstrates the subject
matter jurisdiction of the court and (2) cures the above-described
deficiencies of the fraud claim. Carroll must clearly identify all
parties named as plaintiff and defendant and must allege the
citizenship of each entity. The amended complaint should not refer
back to any of Carroll’s previous filings and should contain all
the claims he is asserting. In other words, the amended complaint
must be completely self-contained; any claims or allegations not

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included in the amended complaint will not be considered. If
Carroll attaches documents to the amended complaint, he must
explain their significance or why he contends they support his
claims. The first page of the amended complaint must be entitled
“FINAL

AMENDED

COMPLAINT”

and

must

include

the

case

number

“2:15-cv-2255-WMA.”
Failure to file an amended complaint within the deadline will
result in the action being dismissed for want of subject matter
jurisdiction. If the amended complaint properly invokes the court’s
jurisdiction, the court will then review the complaint under 28
U.S.C. § 1915(e)(2)(B).
DONE this 10th day of February, 2016.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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