Brownlee v. Allstate et al

Filing 8

ORDER of Dismissal. ORDERED that the Amended Complaint and this action are dismissed without prejudice for lack of subject matter jurisdiction. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 12/21/11. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02843-BNB
MICHAEL BROWNLEE,
Plaintiff,
v.
ALLSTATE,
PAT LABUS (claims dept), and
SANDY DELLA RIPA (claims dept),
Defendants.

ORDER OF DISMISSAL

Plaintiff, Michael Brownlee, initiated this action by filing a pro se Complaint and a
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on November
1, 2011. Mr. Brownlee has been granted leave to proceed in forma pauperis.
On November 14, 2011, Magistrate Judge Boyd N. Boland determined that the
Complaint was deficient because Mr. Brownlee failed to set forth a short and plain
statement of the grounds for the Court’s jurisdiction and of his claims showing that he
was entitled to relief. Therefore, Mr. Brownlee was directed to file an Amended
Complaint. He was specifically directed to identify the statutory authority that would
allow the Court to consider his claims. Mr. Brownlee filed an Amended Complaint on
December 13, 2011.
The Court must construe the Amended Complaint liberally because Mr. Brownlee
is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Amended Complaint

reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the
Court] should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, the Court
should not be an advocate for a pro se litigant. See id. For the reasons set forth
below, the Amended Complaint will be dismissed.
As background for his claims, Mr. Brownlee alleges the following:
I am taking Allstate to court for the following reasons. I received $250,000
due to a car accident “NOT RELATED” in 2009. I bought a Dodge
Charger from Colorado Springs Dodge in 2009. Allstate claims
department accepted a forged power of attorney from a Tammy
McCollum. When I filed my claim, they stated it was a civil matter and my
claim was denied (see exhibit # 1) dated September 28, 2009.
Amended Complaint at 2. Mr. Brownlee further alleges that Tammy McCollum stole his
vehicle and was subsequently arrested in Florida for title fraud but that Defendant
Allstate refused to reimburse him for the loss of his vehicle. Id. at 4. Although the
Amended Complaint is unclear, Mr. Brownlee appears to assert claims for “breach of
written contract,” “statue [sic] of limitation” and “bad faith - medical bills (blood pressure
problems, stress)”. Id. at 6. As relief, Mr. Brownlee seeks damages. Mr. Brownlee has
again failed to identify any statutory authority that would allow the Court to consider his
claims.
Pursuant to Fed. R. Civ. P. 12(h)(3), the Court must dismiss an action if the Court
lacks subject matter jurisdiction. The issue of subject matter jurisdiction may be raised
sua sponte by the Court at any time during the course of the proceedings. See

2

McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988). “The party
seeking to invoke the jurisdiction of a federal court must demonstrate that the case is
within the court’s jurisdiction.” United States v. Bustillos, 31 F.3d 931, 933 (10th Cir.
1994).
“Federal courts are courts of limited jurisdiction; they must have a statutory basis
for their jurisdiction.” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994).
There are two statutory bases for federal subject matter jurisdiction: diversity jurisdiction
under 28 U.S.C. § 1332 and federal question jurisdiction under 28 U.S.C. § 1331. In the
amended complaint, Mr. Brownlee does not allege that any of the defendants violated
his federal constitutional or statutory rights. Instead, he appears to assert only state law
claims for relief. The amended complaint thus does not implicate a federal question.
See 28 U.S.C. § 1331. Mr. Brownlee must satisfy the diversity jurisdiction statute, 28
U.S.C. § 1332, to maintain his action in federal court.
A plaintiff properly invokes § 1332 jurisdiction when he presents a claim between
parties of diverse citizenship that exceeds the required jurisdictional amount, currently
$75,000. See 28 U.S.C. § 1332(a); see also Arbaugh v. Y&H Corp., 546 U.S. 500,
513 (2006). To demonstrate federal jurisdiction pursuant to § 1332, allegations of
diversity must be pleaded affirmatively. See Penteco Corp. Ltd. Partnership-1985A v.
Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir.1991) (citations omitted); see
also Fed. R. Civ. P. 8(a)(1) (pleading must contain “a short and plain statement of the
grounds for the court’s jurisdiction”).

3

Mr. Brownlee has not alleged an adequate basis for exercising diversity
jurisdiction over his state law claims. Plaintiff alleges that he resides in Denver,
Colorado. Mr. Brownlee further alleges that Defendants, Sandy Della Ripa and Pat
Labus, reside or work in Englewood, Colorado. Plaintiff does not allege that these
individuals reside outside of Colorado. The allegations of the amended complaint do not
show complete diversity between the parties and are therefore insufficient to invoke this
Court’s diversity jurisdiction. Therefore, this action will be dismissed without prejudice
for lack of subject matter jurisdiction.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S.
438 (1962). If Plaintiff files a notice of appeal, he must also pay the full $455 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Amended Complaint and this action are dismissed without
prejudice for lack of subject matter jurisdiction. It is

4

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 21st

day of

December

, 2011.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

5