Welch v. Pen Air Bank Corporation et al

Filing 44

ORDER DISMISSING CASE: This action is DISMISSED without prejudice sua sponte for lack of subject matter jurisdiction. As this dismissal is a "without prejudice" one, the merits of the parties' claims, if any, are not barred from further litigation in state or federal court by such order. Signed by Magistrate Judge Sonja F. Bivins on 9/25/19. (mpp) Copies to counsel & mailed to Pltf. Welch.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ELMORE S. WELCH, JR.,

*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
PEN AIR FEDERAL CREDIT UNION,
Defendant.

CIVIL ACTION NO. 18-00220-B

ORDER
This action is before the Court on review following the
Court’s sua sponte issuance of a show cause order directing the
parties to address whether subject matter jurisdiction exists in
this case (Doc. 40).

While Defendant/Counterclaimant Pen Air

Federal Credit Union filed a statement regarding subject matter
jurisdiction (Doc. 42) in response to the Court’s

order, no

response has been filed by Plaintiff/Counter-Defendant Elmore S.
Welch, Jr., who is proceeding pro se.
below,

the

lacking.

Court

finds

Accordingly,

that
this

subject
matter

For the reasons set forth
matter
is

due

jurisdiction
to

be

is

DISMISSED

without prejudice.
I.

BACKGROUND
On May 10, 2018, Plaintiff Elmore S. Welch, Jr. (“Welch”),

proceeding pro se, filed a complaint and a motion to proceed

without

prepayment

of

fees.

(Docs.

1,

2).

The

factual

allegations of Welch’s original complaint1 are as follows:
Before this Court a fraudulent contract took place
with this Bank Corporation that is licensed in the
State of Florida.
My Attorney that I was using in
this matter to pursue my purchase contract is also
licensed in Florida.
On 6/15/2017, I purchased a truck. The list price was
21,000.00.
3,000.00 was put down and 500.00 went
towards full coverage insurance for 6 months at 84.00
a month.
Pen Air Bank Corp. removed my contract out of my
buying package when they made copies after I signed
for 242.00 dollars and 100.00 for an extended warranty
contract. That contract was 20,060.00 dollars. After
I left the bank they mailed a contract to me for an
additional 442.00 that I didn’t sign for, making the
total contract equaling to 29,528.00, fraudulently
signing my name.
I contacted Attorney Dana Brook Cooper to act on my
behalf to obtain my contract policy in which she
failed to do by not suing Pen Air Bank Corp. for
fraud, signing my name to their made-up contract.
Pen Air Bank made up that contract for this truck at a
rate of 937.00 a month after 2,200.00 was already paid
by me for the truck.
The balance for the truck is
25,528.00 dollars. The more I pay, the more they add
and the agreed amount was for 20,060.00 dollars. Dana
Brook Cooper wanted me to continue paying for the
truck without a contract as she stated on her letter
mailed to me.
(Doc.

1

documents,

at

1).

including

Welch

attached

correspondence

1

to

his

between

complaint
him

and

various
attorney

Welch titled his initial complaint “Motion Court Complaint for
a Diversity Jurisdiction Case.”
The caption of Welch’s
complaint listed “Pen Air Bank Corporation, Dana Brook Cooper
Attorney at Law, Etc.” as the Defendants. (Doc. 1 at 1).
2

Dana Brooks Cooper, a letter presumably sent by attorney Cooper
to Pen Air Federal Credit Union on Welch’s behalf, an automobile
purchase agreement, copies of checks or money orders from Pen
Air Federal Credit Union to Chris Carroll Automotive, insurance
documents,

loan

documents,

and

Federal Credit Union to Welch.
The

Court

granted

correspondence

from

Pen

Air

(Doc. 1 at 2-32).

Welch’s

motion

prepayment of fees on May 25, 2018.

to

proceed

without

(Doc. 3 at 1).

Having

granted Welch in forma pauperis status, the Court proceeded to
review his complaint under 28 U.S.C. § 1915(e)(2). 2

In an order

dated May 25, 2018 (Doc. 3), the Court observed that it was not
clear what, if any, basis for federal jurisdiction exists in
this case and that while Welch mentioned diversity jurisdiction,
he did not allege the states of which he and the Defendants were
citizens, nor did he allege the amount in controversy.

2

(Id. at

Section 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines
that—
(A) the allegation of poverty is untrue; or
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may
be granted; or
(iii) seeks monetary relief against a defendant
who is immune from such relief.

28 U.S.C. § 1915(e)(2).
3

4).

Thus, Welch was ordered to file an amended complaint, prior

to service of process, setting forth facts in support of his
assertion of diversity jurisdiction.

(Id.).

On June 1, 2018, Welch filed an amended complaint using a
Court

complaint

form

as

a

template,

and

he

alleged

the

following:
(Grounds for jurisdiction)
1.

Rule 28 USC Section 1332
Banks are bonded by (FDIC)

(Show plaintiff’s name(s) and residence or address)
2.

Elmore S. Welch Jr.
[address omitted by the Court]3

(Show defendant(s) name(s) and address(es))
3.

Pen Air Bank Corporation etc al.
1495 E. Mile Rd
Pensacola Fla 32514

(State briefly your legal claim or your reason for
filing suit. Include the statue under which the suit
is filed.)
4.
Banks are FDIC bonded, when banks fraud aganish
there coustmer’s it excess a truck noted, and
$75,000.00 [sic]
(Give a brief, concise statement of the specific facts
involved in your case)
5.
My contract I sign for was remove from my buying
packing of $242 a month to $442 month

3

Welch listed a street address, but not a city or state.
earlier filing listed an Atmore, Alabama address.
4

His

(State the relief you are requesting.)
6. $250,000 that insurance by (FDIC) for taking my
truck, changing my contract and fraud my name on a
different contract, to make over $10,000.000 profit.
(Doc. 4 at 1-2)
Welch also attached an additional handwritten page to his
amended complaint, wherein he stated:
Before Court a Case has taking place contain to a
Diversity jursidiction Laws of Rules enter by Law, to
remain for the U.S. District Court the Laws, under
Litter Tucker Act, are 28 USC § 1346 and Contract
Disputies Act, of 41 USC § 7101, 28 USC § 1346(a)(2)
The Federal Courts do not have jursidiction to act on
these Laws.
Tucker Act Law is a differant matter of
Rules provide under 28 USC § 1491, 28 USC § 754 and
959(a) 18 USC § 1344 Section 1344 18 USC § 656 and 657
28 USC § 1332 are Laws stated before this Court. [sic]
(Id. at 4).
On July 31, 2018, Pen Air Federal Credit Union4 (“Pen Air”),
filed an answer to Welch’s amended complaint.

(Doc. 10).

Air requested and was granted permission to file

Pen

an amended

answer and counterclaim, and filed such on December 11, 2018.
(Docs. 27, 30, 31).

In both Pen Air’s answer and amended answer,

it asserted as an affirmative defense “that this Court lacks
subject

matter

jurisdiction

over

this

case

as

Plaintiff

has

failed to adequately plead the amount in controversy required by

4

Pen Air averred that it had been improperly named as “Pen Air
Bank Corporation” in Welch’s complaints. (Doc. 10 at 1).
5

28 U.S.C. § 1332.”
counterclaim,

Pen

against Welch.

(Doc. 10 at 2; Doc. 31 at 2).
Air

asserted

a

breach

of

In its

contract

claim

(Doc. 31 at 4-6).

Upon review of Pen Air’s motion for summary judgment and
the other filings in this case, the undersigned again questioned
whether there was subject matter jurisdiction over the case.

As

a result, on June 21, 2019, the Court ordered Welch, as the
party alleging federal jurisdiction, to show cause, on or before
August

5,

2019,

as

to

whether

subject

matter

jurisdiction

existed.

(Doc. 40).

The Court also ordered Pen Air to set

forth

position

to

its

as

whether

the

Court

is

permitted

or

required to exercise jurisdiction over Pen Air’s counterclaim in
the event of a determination by the Court that it lacks subject
matter jurisdiction over Welch’s claims.

(Id. at 9-10).

Welch

failed to respond to the Court’s show cause order.

In its

response,

subject

Pen

Air

asserted

that

if

the

Court

lacks

matter jurisdiction over Welch’s claims, then the Court also
lacks subject matter jurisdiction over Pen Air’s counterclaim.
(Doc. 42).
II.

SUBJECT MATTER JURISDICTION REVIEW
Federal courts are courts of limited jurisdiction.

result

of

this

limitation,

federal

district

courts

have

As a
the

obligation to ensure that subject matter jurisdiction exists.

6

Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004) (“Federal
courts

‘are

obligated

to

inquire

into

subject-matter

jurisdiction sua sponte whenever it may be lacking.’”) (quoting
Galindo-Del Valle v. Att’y Gen., 213 F.3d 594, 599 (11th Cir.
2000)); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411
(11th

Cir.

1999)

(federal

courts

are

courts

of

limited

jurisdiction and must examine their subject matter jurisdiction
notwithstanding the presence of other motions pending before the
court).
court

“As the Federal Rules of Civil Procedure state, ‘If the

determines

at

any

time

that

it

lacks

subject-matter

jurisdiction, the court must dismiss the action.’”

Williams v.

Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir.
2013) (quoting Fed. R. Civ. P. 12(h)(3)); see also Morrison v.
Allstate

Indem.

Co.,

228

F.3d

1255,

1261

(11th

Cir.

2000)

(“[O]nce a court determines that there has been no grant [of
jurisdiction] that covers a particular case, the court’s sole
remaining act is to dismiss the case for lack of jurisdiction.”).
“In a given case, a federal district court must have at
least one of three types of subject matter jurisdiction: (1)
jurisdiction
question

under

a

specific

jurisdiction

statutory

pursuant

to

28

grant;

U.S.C.

§

(2)
1331;

diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).”

federal
or

(3)

Baltin

v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997),

7

cert. denied, 525 U.S. 841 (1998).

Two main statutes confer

original jurisdiction on the district courts.
U.S.C.

§

1331,

which

provides

a

federal

The first is 28

forum

“in

federal-

question cases—civil actions that arise under the Constitution,
laws, or treaties of the United States.”

Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 552 (2005).

The second

is 28 U.S.C. § 1332, which “provide[s] a neutral forum for what
have

come

actions

to

be

between

known

as

citizens

diversity
of

cases,

different

[that

States,

is]

between

civil
U.S.

citizens and foreign citizens, or by foreign states against U.S.
citizens.”

Id.

“To ensure that diversity jurisdiction does not

flood the federal courts with minor disputes, § 1332(a) requires
that the matter in controversy in a diversity case exceed a
specified amount, currently $75,000.”

Id.

If jurisdiction is

based on either federal question or diversity jurisdiction, “the
pleader

must

existence

of

affirmatively
jurisdiction

allege
and

facts

include

‘a

demonstrating
short

and

the
plain

statement of the grounds upon which the court's jurisdiction
depends.’”

Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.

1994) (quoting Fed. R. Civ. P. 8(a)).
The

Court

notes

Welch’s

pro

se

status

and

consequently

gives his pleadings a liberal construction, holding them to a
more lenient standard than those drafted by an attorney.

8

See

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998) (per curiam).

However, “this leniency does not permit the

district court to act as counsel for a party or to rewrite
deficient pleadings.”

Lampkin-Asam v. Volusia Cnty. Sch. Bd.,

261 F. App’x 274, 277 (11th Cir. 2008) (per curiam) (citing GJR
Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369
(11th Cir. 1998, overruled on other grounds by Randall v. Scott,
610 F.3d 701, 709 (11th Cir. 2010)).
III. ANALYSIS
As noted, Welch apparently contends that federal subject
matter jurisdiction exists based on (1) diversity of citizenship,
and (2) the fact that “banks are bonded by (FDIC).”
at

1).

Welch

appears

to

rely

primarily

on

(See Doc. 4
diversity

of

citizenship as the basis for jurisdiction.

However, since Welch

mentions

basis

FDIC

jurisdiction
undersigned

deposit
and

will

insurance

lists
address

as

multiple
the

a

federal

applicability

of

for

federal

statutes,
both

the

diversity

jurisdiction and federal question jurisdiction.
A.

Diversity of Citizenship Jurisdiction

A district court has federal diversity jurisdiction over
any civil case if the parties are citizens of different states
and the amount in controversy exceeds $75,000.00, exclusive of
interest

and

costs.

28

U.S.C.

9

§

1332(a).

In

his

amended

complaint, Welch alleges that the Court has jurisdiction under §
1332,

and

he

requests

the

following

relief:

“$250,000

that

insurance by (FDIC) for taking my truck, changing my contract
and

fraud

my

name

$10,000.000 profit.”

on

a

different

contract,

(Doc. 4 at 1-2).

to

make

over

As noted supra, Pen Air

has asserted that Welch has failed to adequately establish the
amount in controversy (Doc. 10 at 2; Doc. 31 at 2), and although
the Court ordered Welch to show cause as to whether subject
matter jurisdiction exists (see Doc. 40), Welch has failed to
respond to the Court’s order.
As an initial matter, a pleader — even one proceeding pro
se — must affirmatively allege facts demonstrating the existence
of

diversity

jurisdiction.

See

Taylor,

30

F.3d

at

1367

(affirming district court’s finding that it did not have subject
matter jurisdiction based on diversity when the pro se plaintiff
alleged his own state of citizenship but did “not allege the
citizenship of the natural defendants or the principal place of
business for the corporate defendants”).

Such allegations “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.”

Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268

(11th Cir. 2013).

“Without such allegations, district courts

are constitutionally obligated to dismiss the action altogether

10

if the plaintiff does not cure the deficiency.”

Id.

However,

the Court may look to the whole record to cure a defective
allegation of citizenship, “and if the requisite citizenship is
anywhere expressly averred in the record, or facts are therein
stated which, in legal intendment, constitute such allegation,
that is sufficient.”

Sun Printing & Publ’g Ass’n v. Edwards,

194 U.S. 377, 382 (1904); but see Travaglio, 735 F.3d at 1270
(holding

that

a

plaintiff’s

unsworn

statement

about

her

citizenship was inadequate to cure her deficient allegations of
citizenship).
Although Welch’s pleadings are not models of clarity, Welch
arguably

asserts,

abeit

in

an

attachment

to

his

IFP

motion

rather than in his complaints, that he is a citizen of Alabama
and Pen Air is a citizen of Florida.

(See Doc. 5 at 5).

While

Pen Air has not disputed Welch’s assertion, Pen Air asserts in
its corporate disclosure statement that it “is a credit union
organized

under

the

laws

of

the

State

of

Florida

with

a

principal place of business in Pensacola, Florida owned by its
members.”

(Doc. 15 at 1).

The undersigned notes that a credit

union that is chartered pursuant to federal law is not a citizen
of

any

state

for

diversity

jurisdiction

purposes

unless

the

corporation’s activities are “sufficiently ‘localized’ in one

11

state.” 5

Loyola Fed. Sav. Bank v. Fickling, 58 F.3d 603, 606

(11th Cir. 1995); see Feuchtwanger Corp. v. Lake Hiawatha Fed.
Credit Union, 272 F.2d 453 (3d Cir. 1959).

However, as noted,

Pen Air asserts that it “is a credit union organized under the
laws of the State of Florida” and “owned by its members.”
15 at 1). 6

(Doc.

If a credit union is organized under state law, then

“[t]he precise question posed under the terms of the diversity
statute is whether such an entity may be considered a ‘citizen’
of the State under whose laws it was created.”
Assocs., 494 U.S. 185, 187 (1990).
such

as

Pen

Air,

organized

Carden v. Arkoma

For a non-corporate entity

under

state

law,

diversity

jurisdiction “depends on the citizenship of ‘all the members,’
‘the several persons composing such association,’ ‘each of its
members.’”

Id. at 195-96 (internal citations omitted); see also

id. at 195 (rejecting proposition that a “court may consult the
citizenship of less than all of [an artificial] entity’s members”
when

determining

diversity

of

citizenship

concerning

non-

5

A variety of factors are relevant to the inquiry of whether a
federal corporation is localized for diversity purposes, “such
as the corporation’s principal place of business, the existence
of branch offices outside the state, the amount of business
transacted in different states, and any other data providing
evidence that the corporation is local or national in nature.”
Fickling, 58 F.3d at 606.

6

The Florida Credit Union Act states that “[a] credit union is a
cooperative, nonprofit association . . . .”
Fla. Stat. §
657.003.
12

corporate

entities

formed

under

state

law);

Hettenbaugh

v.

Airline Pilots Ass’n Int’l, 189 F.2d 319, 320 (5th Cir. 1951) 7
(“It

is

well

settled

that,

for

the

purposes

of

federal

jurisdiction, an unincorporated association is not a citizen of
any

particular

state

in

its

own

right,

but

that

the

actual

citizenship of its members is determinative.”).
Welch,
jurisdiction

as
of

the

party

this

who

court,

federal jurisdiction.

is

has

attempting
the

burden

to
of

invoke

the

establishing

However, Welch has made no allegation as

to the residence or citizenship of Pen Air’s members, nor is
there anything in the record establishing the citizenship of Pen
Air’s members.

See Hettenbaugh, 189 F.2d at 320 (“We are of the

opinion that the complaint does not have a sufficient showing of
diversity of citizenship or of a federal question to warrant a
federal

court

in

taking

citizenship is alleged.
that

the

defendant

plaintiffs
is

a

jurisdiction.

No

diversity

of

All that is stated in the complaint is

are

voluntary

citizens

of

Florida,

unincorporated

and

association

that

the

existing

under the laws of Illinois, with its domicile in the City of
Chicago.

No

allegation

is

made

as

to

the

residence

or

citizenship of the members of the unincorporated association.”);
7

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc), the Eleventh Circuit adopted as binding
precedent the decisions of the former Fifth Circuit rendered
prior to October 1, 1981.
13

E-Z Pack Mfg., LLC v. RDK Truck Sales & Serv., Inc., 2010 WL
11629317, at *1 (M.D. Fla. Oct. 26, 2010) (“In the case of an
unincorporated

association,

the

plaintiff

must

indicate

the

citizenship of each of its members.”); Hello Network, Inc. v.
CityGrid Media, LLC, 2014 U.S. Dist. LEXIS 85264, at *1, 2014 WL
12696771,

at

*1

(C.D.

Cal.

June

23,

2014)

(“A

partnership,

limited liability company, or other unincorporated association
is joined as a party.

The court must consider the citizenship

of each of the partners, including limited partners, or members.
The citizenship of each of the entity’s partners or members must
therefore
meet

his

be

alleged.”).

burden,

Welch

Although
has

provided

failed

to

opportunities

provide

these

to
key

jurisdictional facts with respect to the citizenship of Pen Air.
Thus, he has failed to establish the existence of diversity
jurisdiction.8
B.

Federal Question Jurisdiction

To the extent Welch makes vague references to federal law
in his pleadings, such fleeting fragments are not sufficient to
show

federal

question

jurisdiction.

Merely

mentioning

a

constitutional provision or a federal statute, without providing
factual

detail

that

is

comprehensible,

8

is

not

sufficient

to

It is also questionable whether Welch has asserted damages in
excess of the threshold required for the exercise of diversity
jurisdiction.
14

establish

federal

jurisdiction

“may

question
be

jurisdiction.

based

on

a

civil

Federal
action

question

alleging

a

violation of the Constitution, or asserting a federal cause of
action

established

by

a

congressionally

created

expressed

or

implied private remedy for violations of a federal statute.”
Jairath v. Dyer, 154 F.3d 1280, 1282 (11th Cir. 1998).
“in

limited

circumstances,

federal-question

Also,

jurisdiction

may

also be available if a substantial, disputed question of federal
law is a necessary element of a state cause of action.”

Id.

A

claim alleged to arise under federal law may be dismissed for
lack of subject matter jurisdiction if: “(1) ‘the alleged claim
under the Constitution or federal statutes clearly appears to be
immaterial

and

made

solely

for

the

purpose

of

obtaining

jurisdiction’; or (2) ‘such a claim is wholly insubstantial and
frivolous.’”

Blue Cross & Blue Shield of Ala. v. Sanders, 138

F.3d 1347, 1352 (11th Cir. 1998) (quoting Bell v. Hood, 327 U.S.
678,

682-83

(1946)).

A

claim

is

“wholly

insubstantial

and

frivolous” so as to warrant dismissal for lack of subject matter
jurisdiction only “if the claim ‘has no plausible foundation, or
if

the

clearly
(quoting

court

concludes

forecloses
Barnett

v.

the

that

a

claim.’”

Bailey,

956

1992)).

15

prior

Supreme

Sanders,
F.2d

1036,

Court

138

F.3d

1041

decision
at

1352

(11th

Cir.

In this case, Welch asserts that “[b]anks are bonded by
(FDIC)” as grounds for federal jurisdiction.

(Doc. 4 at 1).

However, the mere fact that certain banks are insured by the
FDIC does not in itself confer subject matter jurisdiction on a
federal district court in a case in which a bank (or credit
union) is a party.

See Atkins-Payne v. Dime Sav. Bank, 2015 U.S.

Dist. LEXIS 107399, at *9, 2015 WL 4882495, at *3 (E.D.N.Y. Aug.
14, 2015) (“The fact that the banks are insured by the FDIC is
equally unavailing as a basis for a private right of action
against

them

or

their

employees.

Even

if

Atkins–Payne

had

pointed to a particular FDIC regulation allegedly breached by
the banks-and she has not-that breach would not create a private
right

of

action

in

federal

court

against

them

(other

than,

perhaps, for an insurance claim after a bank failure).

With

respect to plaintiff’s core claim-the alleged misappropriation
of

the

conjure

proceeds
a

of

federal

rent

checks-the

question

amended

basis

for

complaint

cannot

subject

matter

jurisdiction.”).
Further, Welch lists many federal statutes; however, it is
extremely difficult to ascertain which, if any, he relies upon
to

provide

jurisdiction.

a

cause

of

action

or

confer

federal

question

Indeed, Welch’s amended complaint merely lists

multiple statutes, without context or intelligible explanation.

16

That is simply not adequate to establish a federal question
under the well-pleaded complaint rule.

See Butler v. Morgan,

562 F. App’x 832, 835 (11th Cir. 2014) (per curiam) (“The sole
reference

to

footnote

federal

citation

law

in

listing,

the

amended

without

complaint—a

context

or

single

elaboration,

various constitutional amendments—is inadequate to demonstrate a
federal

question

under

the

well-pleaded

complaint

rule.

Moreover, the attached copies of 18 U.S.C. §§ 241 and 242 are
similarly

unavailing,

and

are,

in

any

event,

inapplicable

because they are criminal statutes that do not provide a civil
cause

of

action

or

any

civil

remedy.”);

Richardson

v.

Park

Soleil Vacation Owners Ass’n, 2017 U.S. Dist. LEXIS 204856, at
*2-3,

2017

(“Plaintiff

WL

6373924,

begins

her

at

*1

Amended

(M.D.

Fla.

Complaint

Dec.

by

13,

listing

2017)
various

federal statutes but never connects them to Defendants’ alleged
wrongdoing.

Plaintiff goes on to claim that Defendants are ‘in

violation of FICO,’ but, again, fails to explain how.
conclusory
arising

allegations,

under

federal

without
law

and

more,
are

fail

to

therefore

state

Such

a

claim

insufficient

to

establish federal question jurisdiction.”).
While

Welch’s

mere

listing

of

federal

statutes

is

not

sufficient to establish federal question jurisdiction, the Court
will, out of an abundance of caution, examine each of the listed

17

statutes

to

determine

specific

jurisdictional

whether
grant

any
or

of

basis

them
for

might

provide

federal

a

question

jurisdiction in this case.
Welch first cites the “Litter Tucker Act” (presumably the
Little Tucker Act, 28 U.S.C. § 1346(a)(2)).9

However, the Little

Tucker Act only “gives the district courts original jurisdiction,
concurrent

with

that

of

the

Claims

Court,

over

non-tort

statutory civil actions against the United States for claims
which do not exceed $10,000 in amount.”

Parker v. King, 935

F.2d 1174, 1176 (11th Cir. 1991) (emphasis added); see also 32A
Am. Jur. 2d Federal Courts § 905 (“A suit may be maintained
under the Little Tucker Act . . . only if the United States is a
party defendant.”).

Because the United States is not a party to

this action, this Court does not have jurisdiction under 28
9

The Little Tucker Act grants federal district courts concurrent
jurisdiction for non-tort claims for money damages under $10,000
against the United States.
The Little Tucker Act provides, in
relevant part:
The district courts shall have original jurisdiction,
concurrent with the United States Court of Federal
Claims, of: . . . (2) Any other civil action or claim
against the United States, not exceeding $10,000 in
amount, founded either upon the Constitution, or any
Act of Congress, or any regulation of an executive
department, or upon any express or implied contract
with
the
United
States,
or
for
liquidated
or
unliquidated damages in cases not sounding in tort . .
. .
28 U.S.C. § 1346(a)(2).
18

U.S.C. § 1346.

See Atl. Richfield Co. v. F.T.C., 398 F. Supp. 1,

7 (S.D. Tex. 1975) (holding that “jurisdiction is not proper
under 28 U.S.C. § 1346 because the United States is not a party
to this action”), aff’d, 546 F.2d 646 (5th Cir. 1977);

Harbolt

v. Carpenter, 536 F.2d 791, 792 (8th Cir. 1976) (“Jurisdiction
under 28 U.S.C. s 1346 was similarly rejected for failure of the
plaintiffs to join the United States as a party.

We affirm the

District Court’s resolution of these jurisdictional claims on
the basis of its unpublished opinion.”); accord Davis v. Ryan
Oaks Apartment, 357 F. App'x 237, 238 (11th Cir. 2009) (per
curiam) (finding that plaintiff’s amended complaint against a
private defendant did not allege federal question jurisdiction
despite mentioning “28 U.S.C. § 2671 et seq., [because] that
provision concerns the Federal Tort Claims Act, 28 U.S.C. § 1346,
which only provides an avenue for bringing tort claims against
the

United

States,

employees”).

one

of

its

agencies,

or

certain

federal

Accordingly, the Little Tucker Act is inapplicable

to this case.
Welch also cites the Tucker Act, 28 U.S.C. § 1491.
Tucker Act states, in relevant part:
The United States Court of Federal Claims shall have
jurisdiction to render judgment upon any claim against
the
United
States
founded
either
upon
the
Constitution, or any Act of Congress or any regulation
of an executive department, or upon any express or
implied contract with the United States, or for
19

The

liquidated or unliquidated
sounding in tort.
28 U.S.C. § 1491(a)(1).
courts

lack

subject

damages

in

cases

not

Under the Tucker Act, federal district

matter

jurisdiction

to

consider

non-tort

claims for money damages in excess of $10,000 against the United
States.
2017)

See Brott v. United States, 858 F.3d 425, 429 (6th Cir.

(“Together,

the

Tucker

Act

and

the

Little

Tucker

Act

operate to vest in the Court of Federal Claims subject matter
jurisdiction

to

consider

non-tort

claims

for

money

damages

against the United States in excess of $10,000.”), cert. denied,
138

S.

Ct.

1324

(2018);

Vero

Tech.

Support,

Inc.

v.

United

States Dep’t of Def., 437 F. App’x 766, 771 (11th Cir. 2011)
(per curiam) (“Accordingly, the [Court of Federal Claims] now
enjoys exclusive jurisdiction over Tucker Act claims.”).

The

Tucker Act cannot confer subject matter jurisdiction on this
Court,

because

the

Court

of

Federal

Claims

has

exclusive

jurisdiction over Tucker Act claims and, moreover, the Tucker
Act

does

not

parties.

confer

jurisdiction

over

suits

against

private

See Machulas v. United States, 621 F. App’x 629, 632

(Fed. Cir. 2015) (affirming dismissal for lack of jurisdiction
because

the

Tucker

Act

does

not

provide

subject

matter

jurisdiction over claims against parties other than the United
States); Ambase Corp. v. United States, 61 Fed. Cl. 794, 796
(Fed.

Cl.

2004)

(“The

Tucker

Act
20

does

not

grant

this

Court

jurisdiction over tortious claims, nor does it permit this Court
to

hear

claims

between

private

parties.”);

United

States

v.

Sherwood, 312 U.S. 584, 588 (1941) (stating that the Tucker Act
does not give the Court of Federal Claims jurisdiction for suits
brought against private parties).
Welch also cites the Contract Disputes Act, 41 U.S.C. §
7101, et seq.

That statute, however, governs disputes between

the government and parties to government contracts; therefore,
it is wholly inapplicable to the case at bar.

See Vero Tech.

Support, 437 F. App'x at 771 (“The Contract Disputes Act is a
comprehensive scheme for the resolution of [a]ll claims by a
contractor

against

the

(quotations omitted).

government

relating

to

a

contract.”)

It does not apply to disputes between

private parties, nor does it create a private right of action
between them.

Baugh v. Reliance Ins. Co., 2008 U.S. Dist. LEXIS

46603, at *5, 2008 WL 2456704, at *2 (E.D. Pa. June 16, 2008).
Thus, the Contract Disputes Act provides no basis for federal
jurisdiction in this case.
Welch further cites 28 U.S.C. §§ 754 and 959(a), which are
likewise inapplicable to this matter.
evidence

that

any

party

to

this

There is no allegation or

lawsuit

was

“[a]

receiver

appointed in any civil action or proceeding involving property,
real, personal or mixed, situated in different districts . . . .”

21

See 28 U.S.C. § 754.

Section 959(a) provides for a limited

“carrying on business” exception to the Barton doctrine, which
requires a debtor to obtain leave of the bankruptcy court before
initiating

an

action

in

district

court

against

the

trustee,

receiver, or other bankruptcy-court-appointed officer for acts
done

in

the

actor’s

official

exception

is

intended

to

committed

in

furtherance

capacity,

“permit

of

the

and

actions

debtor’s

this

limited

redressing

business

.

.

torts
.

.”

Carter v. Rodgers, 220 F.3d 1249, 1252, 1254-55 (11th Cir. 2000).
Because Welch does not allege that Pen Air was appointed as
trustee, receiver, or manager of his property, and because his
allegations

are

not

premised

on

an

act

or

transaction

of

a

fiduciary in carrying out Welch’s business operations, § 959(a)
does not apply to Welch’s claims.
Welch also cites 18 U.S.C. §§ 656, 657, and 1344, but those
statutes are criminal statutes which do not create a private
civil right of action.

See Connell v. Regions Bank, 2007 U.S.

Dist. LEXIS 47018, at *6-7, 2007 WL 1877677, at *2-3 (N.D. Fla.
June

27,

2007)

(dismissing

case

for

lack

of

subject

matter

jurisdiction and finding that, although plaintiff suggested the
defendant violated 18 U.S.C. §§ 656, 1005, and 1344 by engaging
in bank fraud, misapplying bank funds, and making false entries
in his bank records, plaintiff could “not bring a civil action

22

for

violations

of

those

statutes

because

they

are

criminal

statutes, and none of them create a private right of action”),
report and recommendation adopted, 2007 U.S. Dist. LEXIS 56302,
2007 WL 2214860 (N.D. Fla. Aug. 1, 2007); Campbell v. M&T Bank,
2017 U.S. Dist. LEXIS 41041, at *12-13, 2017 WL 1091939, at *5
(W.D. Pa. Mar. 22, 2017) (dismissing counts “for (1) bank fraud
under

18

U.S.C.

§

1344;

[and]

(2)

theft,

embezzlement,

or

misapplication by bank officer or employee under 18 U.S.C. § 656”
because “the statutes upon which those counts are predicated do
not provide a private right of action”); U.S. ex rel. Nagy v.
Patton, 2012 U.S. Dist. LEXIS 70995, at *7-8, 2012 WL 1858983,
at *2 (E.D. Pa. May 22, 2012) (holding that § 656 does not
create an implied

private right of action);

Kwiatkowski v.

Polish & Slavic Fed. Credit Union, 2011 U.S. Dist. LEXIS 142573,
at *14-15, 2011 WL 6225390, at *5 (E.D.N.Y. Dec. 12, 2011),
aff’d, 511 F. App’x 117 (2d Cir. 2013) (dismissing claim under
18 U.S.C. § 657 because it is a criminal statute and does not
create a private civil cause of action); Fed. Sav. & Loan Ins.
Corp. v. Reeves, 816 F.2d 130, 137 (4th Cir. 1987) (finding no
basis for implying a civil cause of action from various federal
criminal code provisions, including 18 U.S.C. § 657).10

10

The only other federal statute cited by Welch is 28 U.S.C. §
1332, the diversity statute. (See Doc. 4 at 4).
23

As discussed above, the bevy of federal statutes cited by
Welch — without intelligible elaboration — either do not apply
to his claims, confer exclusive jurisdiction on another court,
or are criminal code provisions that do not provide a private
civil right of action.

Thus, to the extent Welch’s amended

complaint can be construed either to allege a cause of action or
the existence of federal question jurisdiction based on any of
the

aforementioned

plausible

federal

foundation

and

statutes,
thus

are

all

such

wholly

claims

lack

insubstantial

a

and

frivolous.

For all the foregoing reasons, the Court concludes

that

has

Welch

federal

claim

failed
and,

to

allege

therefore,

a

substantial,

provides

no

nonfrivolous

basis

for

federal

question jurisdiction in this case.
C.

Supplemental Jurisdiction.

The Court’s only other possible jurisdictional basis over
Welch’s

claim(s)

is

supplemental

jurisdictional.

When

a

district court has original jurisdiction over a civil action,
the court also has “supplemental jurisdiction over all other
claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.”
28

U.S.C.

§

1367(a).

However,

“[o]nly

when

the

Court

has

original jurisdiction does it have ‘supplemental jurisdiction’”

24

under § 1367.

Jordan v. United States Dep’t of Educ., 2018 U.S.

Dist. LEXIS 183263, at *16, 2018 WL 5300199, at *6 (M.D. Fla.
Oct. 4, 2018), report and recommendation adopted, 2018 U.S. Dist.
LEXIS 182886, 2018 WL 5293011 (M.D. Fla. Oct. 25, 2018); see
also Herman Family Revocable Tr. v. Teddy Bear, 254 F.3d 802,
805 (9th Cir. 2001) (“The statute’s plain language makes clear
that

supplemental

jurisdiction

may

only

be

invoked

when

the

district court has a hook of original jurisdiction on which to
hang it.”); Kinsey v. King, 257 F. App’x 136, 138-39 (11th Cir.
2007)

(per

curiam)

insubstantial

and

(finding
frivolous

supplemental jurisdiction).
substantial,
adequately

nonfrivolous
plead

that

and

a

federal

cannot

claim

establish

a

that

basis

is
for

As Welch has failed to allege a
federal

prove

claim

the

and

has

existence

failed

of

to

diversity

jurisdiction, this Court lacks original jurisdiction over his
claims.

Accordingly,

there

is

no

basis

for

supplemental

jurisdiction over any of Welch’s claims.
D.

Jurisdiction Over Pen Air’s Counterclaim.

“When a district court dismisses an action for lack of
federal

subject

matter

jurisdiction,

it

may

nonetheless

adjudicate a counterclaim presenting an independent basis for
federal

jurisdiction.”

La

Gorce

Country

Club,

Inc.

v.

Underwriters at Lloyd’s of London, 2009 U.S. Dist. LEXIS 122131,

25

at *4-5, 2009 WL 4927557, at *2 (S.D. Fla. Dec. 21, 2009).

“But

it is apparent in those exceptional cases where a counterclaim
may survive the jurisdictional failure of a complaint that at
least three premises must exist.

Jurisdiction must exist within

the scope of the allegations of the counterclaim; the claim made
in the counterclaim must be independent of that made in the main
case; and, lastly, affirmative relief must be sought.”

Mfrs.

Cas. Ins. Co. v. Arapahoe Drilling Co., 267 F.2d 5, 8 (10th Cir.
1959).
Here, Pen Air’s counterclaim contains a single count for
breach of contract, which requests damages in the amount of
$9,912.08 and only involves matters of state law.
Air

makes

no

independent

jurisdictional

Moreover, Pen

allegations

in

its

counterclaim and, indeed, has asserted as an affirmative defense
that this Court lacks federal subject matter jurisdiction over
this case.

Thus, as Pen Air acknowledges, its counterclaim

presents no independent basis for this Court’s jurisdiction, and
this Court cannot exercise supplemental jurisdiction over Pen
Air’s counterclaim.

See Bernstein v. Howe, 2018 U.S. Dist.

LEXIS 219139, at *16-17, 2018 WL 4474646, at *6 (N.D. Ga. June
25, 2018), report and recommendation adopted, 2018 U.S. Dist.
LEXIS 219136, 2018 WL 4473150 (N.D. Ga. July 27, 2018).

26

IV.

CONCLUSION
For the reasons set forth above, this action is hereby

DISMISSED

without

prejudice

matter jurisdiction.

sua

sponte

for

lack

of

subject

As this dismissal is a “without prejudice”

one, the merits of the parties’ claims, if any, are not barred
from

further

litigation

in

state

or

federal

court

by

such

order.11
DONE this 25th day of September, 2019.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

11

As best the Court can discern, it appears that Welch’s claim
accrued in Florida, which is where he purchased his car and
obtained financing. In Florida, a fraud action must be brought
within four years of when the plaintiff discovers or should have
discovered the facts giving rise to the claim. See Fla. Stat. §§
95.11(3)(j) and 95.031(2)(A).
Florida has a five-year statute
of
limitations
for
breach
of
contract
claims.
Id.
at
95.11(2)(b).
27