Fallon v. Marler
Order that Plaintiff is ORDERED to file an Amended Complaint by 11/1/2016 that demonstrates the existence of diversity. Signed by Magistrate Judge Katherine P. Nelson on 10/25/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
PAUL E. FALLON,
RICHARD LEO MARLER,
CIVIL ACTION NO. 16-00540-N
This action is before the Court sua sponte on review of its subject matter
jurisdiction.1 The Plaintiff initiated this action by filing a Complaint (Doc. 1) with
the Court, alleging diversity of citizenship under 28 U.S.C. § 1332(a) as the sole
basis for jurisdiction.
See Fed. R. Civ. P. 8(a)(1) (“A pleading that states a claim for
relief must contain a short and plain statement of the grounds for the court’s
When a plaintiff files suit in federal court, [the plaintiff] must allege
facts that, if true, show federal subject matter jurisdiction over [the]
case exists. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).
Those allegations, when federal jurisdiction is invoked based upon
diversity, must include the citizenship of each party, so that the court is
satisfied that no plaintiff is a citizen of the same state as any
defendant. Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287
(11th Cir. 1998) (“Diversity jurisdiction requires complete diversity;
every plaintiff must be diverse from every defendant.”). Without such
“It is . . . axiomatic that the inferior federal courts are courts of limited jurisdiction. They
are ‘empowered to hear only those cases within the judicial power of the United States as
defined by Article III of the Constitution,’ and which have been entrusted to them by a
jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d
405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)).
Accordingly, “it is well settled that a federal court is obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking.” Id. at 410. “[A] court should inquire
into whether it has subject matter jurisdiction at the earliest possible stage in the
allegations, district courts are constitutionally obligated to dismiss the
action altogether if the plaintiff does not cure the deficiency. Stanley
v. C.I.A., 639 F.2d 1146, 1159 (5th Cir. Unit B Mar. 1981); see also
DiMaio v. Democratic Nat'l Comm., 520 F.3d 1299, 1303 (11th Cir.
2008) (“Where dismissal can be based on lack of subject matter
jurisdiction and failure to state a claim, the court should dismiss on
only the jurisdictional grounds.” (internal quotation marks omitted)).
That is, if a complaint’s factual allegations do not assure the
court it has subject matter jurisdiction, then the court is
without power to do anything in the case. See Goodman ex rel.
Goodman v. Sipos, 259 F.3d 1327, 1331, n.6 (11th Cir. 2001) (“ ‘[A
district] court must dismiss a case without ever reaching the merits if it
concludes that it has no jurisdiction.’ ” (quoting Capitol Leasing Co. v.
FDIC, 999 F.2d 188, 191 (7th Cir. 1993))); see also Belleri v. United
States, 712 F.3d 543, 547 (11th Cir. 2013) (“We may not consider the
merits of [a] complaint unless and until we are assured of our subject
Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir. 2013) (emphasis added)
(footnote omitted). See also, e.g., Ray v. Bird & Son & Asset Realization Co., Inc.,
519 F.2d 1081, 1082 (5th Cir. 1975) (“The burden of pleading diversity of citizenship
is upon the party invoking federal jurisdiction . . .” (citing Mas v. Perry, 489 F.2d
1396 (5th Cir. 1974)).2 Upon consideration, the undersigned finds that the Plaintiff
should be ordered to supplement his allegations as to the parties’ citizenships.3
The Plaintiff has only alleged the states of residence of the two natural person
parties. (see Doc. 1 at 1, ¶¶ 1 – 2). The Eleventh Circuit Court of Appeals has
repeatedly stressed that “[c]itizenship, not residence, is the key fact that must be
“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 the close of business on September 30, 1981.” Travaglio, 735 F.3d at
For purposes of sua sponte review, the undersigned finds that the Plaintiff has alleged
sufficient facts indicating that § 1332(a)’s requisite amount in controversy is satisfied.
alleged . . . to establish diversity for a natural person.”
Taylor v. Appleton, 30 F.3d
1365, 1367 (11th Cir. 1994) (emphasis added). See also Travaglio, 735 F.3d at 1269
(“As we indicated in remanding this case for jurisdictional findings, the allegations
in Travaglio’s complaint about her citizenship are fatally defective.
alone is not enough.”); Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330,
1342 n.12 (11th Cir. 2011) (“Ordinarily, the complaint must allege the citizenship,
not residence, of the natural defendants.”); Beavers v. A.O. Smith Elec. Prods. Co.,
265 F. App’x 772, 778 (11th Cir. 2008) (per curiam) (unpublished) (“The plaintiffs’
complaint alleges only the residence of the nearly 100 plaintiffs, not their states of
citizenship. Because the plaintiffs have the burden to affirmatively allege facts
demonstrating the existence of jurisdiction and failed to allege the citizenship of the
individual plaintiffs, the district court lacked subject matter jurisdiction on the face
of the complaint.” (internal citation and quotation omitted)); Crist v. Carnival Corp.,
410 F. App'x 197, 200 (11th Cir. 2010) (per curiam) (unpublished) (“The allegation
that Crist is a ‘resident’ of Florida is insufficient for diversity jurisdiction purposes
because residency is not the equivalent of citizenship.”).
“Citizenship is equivalent to ‘domicile’ for purposes of diversity jurisdiction.
A person’s domicile is the place of his true, fixed, and permanent home and principal
establishment, and to which he has the intention of returning whenever he is absent
McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002)
(citations, quotations, and footnote omitted). See also Travaglio, 735 F.3d at 1269 (“
‘Citizenship is equivalent to “domicile” for purposes of diversity jurisdiction.’
domicile requires both residence in a state and ‘an intention to remain there
indefinitely....’ ” (quoting McCormick, 293 F.3d at 1257-58 (internal quotation marks
omitted)) (internal citation omitted)); Mas, 489 F.2d at 1399 (“For diversity
purposes, citizenship means domicile; mere residence in the State is not sufficient.”).
“Defective allegations of jurisdiction may be amended, upon terms, in the trial
or appellate courts.”
28 U.S.C. § 1653. “[L]eave to amend should be freely granted
when necessary to cure a failure to allege jurisdiction properly.”
Georgiana Cmty. Hosp., Inc., 724 F.2d 901, 903 n.1 (11th Cir. 1984).
consideration, the Plaintiff is ORDERED to file, no later than Tuesday,
November 1, 2016, an amended complaint that sufficiently demonstrates the
existence of diversity under § 1332(a) by alleging the states of citizenship (i.e.
domicile) for the natural person parties, or that alleges some alternative basis for
subject matter jurisdiction. In filing the amended complaint, the Plaintiff must
abide by the following directives:
The amended complaint shall reproduce the entire original complaint as
amended, see S.D. Ala. CivLR 15(a) (“Any amendment to a pleading … must
reproduce the entire pleading as amended and may not incorporate any prior
pleading by reference.”), and will become the operative complaint in this
“As a general matter, ‘[a]n amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a part of the pleader's averments
against his adversary.’ ” Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th
Cir. 2007) (per curiam) (quoting Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V
OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006) (citation and quotation
omitted)). See also, e.g., Fritz v. Standard Sec. Life Ins. Co. of New York, 676 F.2d 1356,
The Plaintiff must file his amended complaint as a freestanding pleading and
not as an exhibit attached to a motion.
Any filing made in contravention of these directives will be deemed
nonresponsive to this Order and will be summarily ordered stricken. Moreover, the
failure to file an amended complaint as ordered may result in dismissal of this action
for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.”).
DONE and ORDERED this the 25th day of October 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
1358 (11th Cir. 1982) (“Under the Federal Rules, an amended complaint supersedes the
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