Esposito v. Hollander et al

Filing 27

OPINION AND ORDER denying 2 Motion to appoint counsel; denying as moot 6 Motion to Dismiss for Lack of Jurisdiction; adopting in part 13 Report and Recommendations and otherwise finding moot; denying as moot 21 Motion for summary judgment. The 26 Amended Complaint is dismissed without prejudice. Plaintiff may file a second amended complaint within 21 days. Signed by Judge John E. Steele on 12/22/2009. (RKM)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION RALPH H. ESPOSITO, JR., Plaintiff, vs. RICHARD HOLLANDER; RUTH SAMELSON, EDWARD Case No. MILLER; 2:09-cv-728-FtM-29SPC

___________________________________ OPINION AND ORDER This matter comes to before Dismiss the Court #6) on and consideration the Report of and

defendants'

Motion

(Doc.

Recommendation (Doc. #13) recommending that plaintiff's Motion for Appointment of Counsel (Doc. #2) be denied and the Complaint be dismissed without prejudice, with leave for plaintiff to file an amended complaint. to the Report and Plaintiff filed Written Objections (Doc. #24) Recommendation, but also filed an Amended

Complaint (Doc. #26). In light of

Plaintiff also filed a Notice (Doc. #22). the Amended Complaint, the Report and

Recommendation and the Motion to Dismiss are moot. however, review the Amended Complaint for

The Court will, subject matter

jurisdiction and pleading sufficiency. Read liberally because of plaintiff's pro se status, the Amended Complaint (Doc. #26) alleges legal malpractice by members

of the law firm which represented plaintiff in a Chapter 13 bankruptcy proceeding. Federal courts are courts of limited

jurisdiction, and cannot act outside their statutory subject-matter jurisdiction. University of S. Ala. v. Am. Tobacco, 168 F.3d 405, While the Amended Complaint makes

409-410 (11th Cir. 1999).

reference to the First Amendment, no cause of action is stated under the First Amendment or any other U.S. Constitutional

provision or federal law, and therefore no jurisdiction exists under 28 U.S.C. § 1331. Additionally, all parties are citizens of

Florida, and therefore not jurisdiction exists under 28 U.S.C. § 1332(a)(1). University of S. Ala. v. Am. Tobacco, 168 F.3d at 412.

It appears, however, that the district court has subject matter jurisdiction because the legal malpractice claim is based on

plaintiff's attorney's handling of his bankruptcy case, and thus "arises under" Title 11 for purposes of federal jurisdiction. Capitol Hill Group v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 489 (D.C. Cir. 2009); Heck-Dance v. Cardona-Jimenez, 102 Fed. Appx. 171, 171-72 (1st Cir. 2004); Grausz v. Englander, 321 F.3d 467 (4th Cir. 2003); Southmark Corp. v. Coopers & Lybrand (In re Southmark Corp.), 163 F.3d 925 (5th Cir. 1999); Billing v. Ravin, Greenberg & Zackin, P.A., 22 F.3d 1242, 1244 (3d Cir. 1994). The Amended Complaint clearly fails to properly state any cause of action against any defendant. with the filing instructions Plaintiff has not complied in the Report and

provided

Recommendation (Doc. #13, pp. 5-6), and even liberally construed, the Amended Complaint is insufficient. Plaintiff will be given one last opportunity to adequately set forth his cause(s) of action
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with the supporting facts and allegations set forth in the document to be entitled "Second Amended Complaint." Any exhibits should be

attached at the end of the Second Amended Complaint. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #13) is ADOPTED IN

PART as to appointment of counsel and is otherwise MOOT. 2. Plaintiff's Motion for Appointment of Counsel (Doc. #2) is DENIED. 3. 4. Defendants' Motion to Dismiss (Doc. #6) is DENIED AS MOOT. Plaintiff's Motion for Summary Judgment (Doc. #21) is

DENIED AS MOOT. 5. The Amended Complaint (Doc. #26) is DISMISSED WITHOUT Plaintiff may file a second amended complaint setting

PREJUDICE.

forth all his cause(s) of action within TWENTY-ONE (21) DAYS of the date of this Order. DONE AND ORDERED at Fort Myers, Florida, this December, 2009. 22nd day of

Copies: U.S. Magistrate Judge Plaintiff Counsel of record

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