Ogletree v. Hayes
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/23/2016. (JLC)
2016 Mar-23 AM 11:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ROBERT HAYES, Attorney,
) Case No.: 2:15-CV-2369-VEH
Introduction and Procedural History
This case was reassigned to the undersigned on March 16, 2016. (Doc. 7).
Plaintiff Ervin Ogletree (“Mr. Ogletree”), who is proceeding pro se, initiated the
action on December 31, 2015, against Defendant Robert Hayes (“Mr. Hayes”). (Doc.
1). Mr. Ogletree does not indicate in his complaint what statute he relies upon to
establish the existence of subject matter jurisdiction. (See id. at 2 ¶ 3 (leaving
jurisdictional portion of “General Complaint Form for Pro Se Litigants” blank)).
Because federal courts are tribunals of limited jurisdiction, “a federal court has
an independent obligation to review its authority to hear a case before it proceeds to
the merits.” Mirage Resorts, Inc. v. Quiet Nacelle Corp., 206 F.3d 1398, 1400-01
(11th Cir. 2000); see also Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342,
1352 (11th Cir. 1997) (“The Court sua sponte may raise a jurisdiction defect at any
time.”). Perceiving jurisdictional problems with his complaint, the previously
assigned judge entered a show cause order (Doc. 5) on March 1, 2016, which
explained to Mr. Ogletree that he needed to satisfy his jurisdictional burden and gave
him 10 days (until March 11, 2016), to meet that requirement by “fil[ing] an amended
complaint with facts sufficient to allow the [court] to evaluate the presence of federal
jurisdiction.” (Doc. 5 at 4).
This show cause order also put Mr. Ogletree on notice that his failure to
respond might result in a dismissal of his claims “without further notice.” Id. The
show cause deadline has passed without any filing from Mr. Ogletree. Because Mr.
Ogletree has failed to carry his jurisdictional burden after the court explained his
complaint’s deficiencies and gave him an opportunity to amend in a manner that
cured those concerns, his case is due to be dismissed without prejudice sua sponte.
Alternatively, Mr. Ogletree’s action is due to be dismissed without prejudice for his
failure to prosecute.
Subject Matter Jurisdiction
Mr. Ogletree’s case is due to be dismissed without prejudice for lack of subject
matter jurisdiction. A dismissal for lack of subject matter jurisdiction must be without
prejudice. Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229,
1235 (11th Cir. 2008) (affirming district court dismissal for lack of jurisdiction but
reversing for entry of dismissal “without prejudice” on remand rather than “with
prejudice” as originally and erroneously entered).
As the court previously explained in its show cause order, Mr. Ogletree makes
no claim for relief that it can readily decipher as appropriately and plausibly arising
under federal law. Instead, the only claim that Mr. Ogletree appears to assert against
Mr. Hayes is one for legal malpractice that arises under Alabama law. “As a general
rule, a case arises under federal law only if it is federal law that creates the cause of
action.” Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996) (citing Franchise Tax
Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-10, 103 S. Ct. 2841,
2846, 77 L. Ed. 2d 420 (1983)).
Alternatively “[a] case, however, may arise under federal law ‘if a well-pleaded
complaint established that [the] right to relief under state law requires resolution of
a substantial question of federal law in dispute between the parties.’” Diaz, 85 F.3d
at 1505 (quoting Franchise Tax Board, 463 U.S. at 13, 103 S. Ct. at 2848). Mr.
Ogletree’s complaint does not meet this less common method for establishing federal
question jurisdiction as it completely lacks any reference, much less a substantial
connection to federal substantive law. Thus, Mr. Ogletree cannot depend upon 28
U.S.C. § 1331 (i.e., the federal question statute) as a basis for subject matter
jurisdiction. Cf. Diaz, 85 F.3d at 1505-06 (11th Cir. 1996) (holding that claim of legal
malpractice allegedly committed by an attorney in a prior federal court case involving
issues of federal constitutional law did not present a federal question); cf. also Ray
v. Tennessee Valley Authority, 677 F.2d 818, 820, 825-26 (11th Cir.1982) (finding
federal question jurisdiction lacking for legal malpractice claim asserted against
district court-appointed attorney who previously handled reduction-in-force action
against public employer under 42 U.S.C. §§ 1983 and 1985).
Mr. Ogletree is also foreclosed from relying upon 28 U.S.C. § 1332 (i.e., the
diversity statute) in light of his complaint’s indication that he and Mr. Hayes are both
residents of Alabama. (Doc. 1 at 1, 2). Critically, the apparent lack of diversity
between him and Mr. Hayes runs afoul of § 1332(a)(1)’s requirement that the
opposing parties be “citizens of different States[.]” 28 U.S.C. § 1332(a)(1). See, e.g.,
Ray, 677 F.2d at 825 (“Because both Ray and Drake are citizens of the same state,
Alabama, the court lacked diversity jurisdiction under 28 U.S.C. § 1332.”).
Additionally, Mr. Ogletree’s complaint does not ask for a specific amount of
damages, much less a sum that satisfies the amount in controversy component of
diversity jurisdiction. (Doc. 1 at 3 ¶ 5); (Doc. 5 at 3); see also 28 U.S.C. § 1332(a)
(providing that “district court shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,000 . . .”).
The burden of establishing federal jurisdiction falls on the party who is
attempting to invoke the jurisdiction of the federal court. McNutt v. Gen. Motors
Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135
(1936). Despite the entry of the show cause order, Mr. Ogletree still has not
demonstrated how this court can appropriately exercise federal jurisdiction over his
dispute with Mr. Hayes. Thus, Mr. Ogletree has not carried his burden and a sua
sponte dismissal of his case without prejudice is required. See FED. R. CIV. P. 12(h)(3)
(providing that in the absence of subject matter jurisdiction, “the court must dismiss
the action.”) (emphasis added); see also Morrison v. Allstate Indemnity Co., 228 F.3d
1255, 1261 (11th Cir. 2000) (same).
Failure to Prosecute
Alternatively, Mr. Ogletree’s case is due to be dismissed for his failure to
prosecute. As the foregoing procedural history reveals, Mr. Ogletree has neither
complied with the requirements of the court’s show cause order nor provided any
explanation to the court for this non-compliance. Under the Federal Rules of Civil
Procedure, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court
order, a defendant may move to dismiss the action or any claim against it.” FED. R.
CIV. P. 41(b).
Further, case law reinforces that, as a result of Mr. Ogletree’s failure to comply
with the show cause order or otherwise indicate an intent that he still wishes to pursue
claims against Mr. Hayes (e.g., such as by seeking an extension of time in which to
amend his complaint in a jurisdictionally-satisfying manner), the court possesses the
inherent power to dismiss his suit sua sponte. See Link v. Wabash Railroad Co., 370
U.S. 626, 630-31, 82 S. Ct. 1386, 1389, 8 L. Ed. 2d 734 (1962) (“The authority of a
court to dismiss sua sponte for lack of prosecution has generally been considered an
‘inherent power,’ governed not by rule or statute but by the control necessarily vested
in courts to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.” (citing Cage v. Cage, 74 F.2d 377, 378 (5th Cir. 1934) (“Every
court has the inherent power in term time, without notice, to set cases appearing on
its docket for hearing and to dismiss cases for want of, or unreasonable delay in,
prosecution.”)));1 see also Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)
(“The court’s power to dismiss is an inherent aspect of its authority to enforce its
orders and insure [sic] prompt disposition of lawsuits.” (citing Link, 370 U.S. at 63031, 82 S. Ct. at 1388-89)); cf. Gratton v. Great American Communications, 178 F.3d
1373, 1374 (11th Cir. 1999) (recognizing that court has broad authority under Rule
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
37 to control discovery and enforce its orders); cf. also FED. R. CIV. P. 1 (“[These
rules] should be construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding.”) (emphasis added).
“While dismissal is an extraordinary remedy, dismissal upon disregard of an
order, especially where the litigant has been forewarned, generally is not an abuse of
discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (emphasis added)
(citing State Exchange Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982)). Here,
by virtue of the court’s show cause order, Mr. Ogletree was expressly put on notice
that the court would consider dismissing his lawsuit for lack of subject matter
jurisdiction if he failed to timely and adequately comply (Doc. 4 at 4) and,
nonetheless, he ignored that warning and filed nothing. “[A] plaintiff who ignore[s]
notices and orders of the court [is not] excused merely because of her pro se status.”
Moon, 863 F.2d at 838 n.5 (citing Anthony v. Marion County General Hospital, 617
F.2d 1164, 1169 (5th Cir. 1980)); see also Moon, 863 F.2d at 837 (“[O]nce a pro se
IFP litigant is in court, he is subject to the relevant law and rules of court, including
the Federal Rules of Civil Procedure.”).
Guided by the foregoing legal framework, the court concludes that dismissing
Mr. Ogletree’s action against Mr. Hayes “without prejudice” (rather than “with
prejudice”) is the most appropriate measure to take, especially as Mr. Ogletree is
representing himself. Cf. Phipps v. Blakeny, 8 F.3d 788, 790-91 (11th Cir. 1993)
(“When the record clearly demonstrates that a plaintiff deliberately and defiantly
refused to comply with several court orders on discovery and tells the court that [s]he
will not comply in the future, a district judge has the authority to deny that plaintiff
further access to the court to pursue the case.”). Additionally, a “without prejudice”
dismissal is consistent the court’s prior warning to Mr. Ogletree about the negative
consequences for him in the event that he did not replead his claims to show the
existence of subject matter jurisdiction as such a dismissal is always and only
appropriately entered as a “without prejudice” ruling. See Stalley, supra.
Because Mr. Ogletree has invoked the jurisdiction of this court, and because
he has neither filed anything in response to the show cause order nor otherwise
attempted to cure his complaint’s numerous jurisdictional deficits (as previously
pointed out to him) through an amending pleading, his lawsuit is due to be dismissed
without prejudice sua sponte. Alternatively, Mr. Ogletree’s case is due to be
dismissed without prejudice for his failure to prosecute.
Importantly, as the court’s dismissal is a “without prejudice” one regardless of
the underlying reasoning (i.e., want of jurisdiction or lack of prosecution), this means
that the merits of Mr. Ogletree’s claims against Mr. Hayes, if any, are not barred from
further litigation in state or federal court. Further, in the absence of subject matter
jurisdiction and Mr. Ogletree’s concomitant failure to prosecute, Plaintiff’s Motion
To Proceed In Forma Pauperis (Doc. 2) filed on December 31, 2015, is due to be
termed as moot. Finally, the court will enter a separate order of dismissal consistent
with this memorandum opinion.
DONE and ORDERED this 23rd day of March, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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