Gunn et al v. Cochran Law Firm, The et al

Filing 14

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 11/21/2014. (KAM, )

FILED
2014 Nov-21 PM 03:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
KAY GUNN, et al.,

)
)
)
)
)
)
)
)
)
)

Plaintiffs;
vs.
THE COCHRAN FIRM, et al.,
Defendants.

7:14-cv-01822-LSC

Memorandum of Opinion
Before this Court is Plaintiffs’ first and second amended complaint (Docs. 12
& 13). However, Plaintiffs are no longer allowed an amendment as a matter of course.
See Fed. R. Civ. P. 15(a) (giving a party 21 days following service of the first responsive
pleading to amend as a matter of course). Therefore, the Court will consider whether
Plaintiffs should be given leave to amend.
The Court examined the original complaint for jurisdiction. Since diversity
jurisdiction was lacking and not alleged, this Court determined that Plaintiffs intended
to invoke federal question jurisdiction under 28 U.S.C. § 1331. However, Plaintiffs’
supposed federal anchor claims—alleged due process violations under the Fifth and
Fourteenth Amendments—were jurisdictionally flawed, since nowhere did Plaintiffs
Page 1 of 4

allege that Defendants were state or federal actors. See Dusenbery v. United States, 534
U.S. 161, 167 (2002) (stating that “[t]he Due Process Clause of the Fifth Amendment
prohibits the United States, as the Due Process Clause of the Fourteenth Amendment
prohibits the States, from depriving any person of property without ‘due process of
law’”); see also Blakenship v. Gulf Power Co., 551 F. App’x 468, 471 (11th Cir. 2013)
(dismissing a Fourteenth Amendment-based due process claim brought under 42
U.S.C. § 1983, and noting that a plaintiff must allege state action to establish
jurisdiction (citing Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001))).
Consequently, this Court ordered Plaintiffs to show cause why this action
should not be dismissed for lack of jurisdiction. Specifically, Plaintiffs were asked to
clarify how Defendants (a private law firm and an individual employee of that firm)
can be considered state or federal actors for the purposes of Plaintiffs’ due process
claims. Though the due process claims remain in the amended complaint, Plaintiffs
still do not allege that the defendants are state or federal actors, thus apparently
conceding that the due process claims are flawed and cannot serve as the basis for
jurisdiction.
Instead, Plaintiffs now allege diversity as the jurisdictional basis for the
remaining state law claims. However, for diversity jurisdiction exist under 28 U.S.C.

Page 2 of 4

§ 1332, there must be complete diversity among the parties. In other words, “every
plaintiff must be diverse from every defendant.” Triggs v. John Crump Toyota, Inc., 154
F.3d 1284, 1287 (11th Cir. 1998); see also Travaglio v. Am. Express Co., 735 F.3d 1266,
1268 (11th Cir. 2013 (stating that, to establish diversity jurisdiction, a plaintiff must
allege facts showing “no plaintiff is a citizen of the same state as any defendant”). By
Plaintiffs’ own admission, complete diversity does not exist in this case. Plaintiffs state
that Defendant, the Cochran Firm, is considered a citizen of Alabama, as are all but
one of the Plaintiffs. Furthermore, Defendant Byron Lewis is also alleged to be a
citizen of Alabama, making him diverse to only one of the Plaintiffs.
Despite three attempts, Plaintiffs still fail to establish a valid basis for federal
jurisdiction. Consequently, leave to amend is DENIED. Plaintiffs have requested that
the case be “remanded” to state court rather than dismissed. However, Plaintiffs’
action was filed in federal court. The Court cannot remand an action to state court
when it was never filed there originally. Thus, Plaintiffs’ case is due to be dismissed
without prejudice.

Page 3 of 4

Done this 21st day of November 2014.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
177822

Page 4 of 4